A New Hampshire Supreme Court opinion expands the definition of “adultery” to include same-sex affairs

The Supreme Court of New Hampshire has expanded the concept of adultery to include same-sex infidelity. The issue came up during Molly and Robert Blaisdell’s divorce proceedings in the Manchester Family Division The husband demanded a divorce on the grounds of adultery, claiming that his wife had an affair with another woman. A lower court rejected his petition based on a 2003 state Supreme Court decision that described adultery as sexual relations between people of the opposite sex.

“It was a regulation from a long time ago. It was offensive to gay people,” said Ted Lothstein, a Concord lawyer who argued on the husband’s behalf.

However, the Supreme Court overturned its previous ruling, stating that the old term is incompatible with the Legislature’s 2009 enactment of same-sex marriage.

In a unanimous decision, the justices wrote, “It defies logic to say that our legislature and the Supreme Court acknowledged the rights of same-sex spouses to join legally legitimate marriages without proposing that same-sex couples be provided with all of the obligations, privileges, and grounds for divorce that are associated with the marriage’s legal status.”

The justices looked at the changing legal and dictionary meanings of the words adultery and intercourse in an eight-page ruling. The change of the Legislature in 2009 to permit same-sex marriage was a major element in its decision. It would be incongruous for New Hampshire to legalize same-sex marriage but only accept opposite-sex adultery, wrote Justice Patrick Donovan.

He wrote, “Such an interpretation would not achieve the statute’s ultimate role of stopping the marital pledge of fidelity in all legally recognized marriages and would lead in an absurd and unjust result.”

Donovan presented a four-part analysis since the decision reversed a 2003 ruling in Blanchflower vs. Blanchflower.
“In sum, in the eyes of the law and culture, the perception of the institution of marriage underpins our Blanchflower holding has changed,” Donovan wrote.

Donovan noted that by 2003 tthe legislation and public perception surrounding same-sex marriage were already shifting. He also quoted former Chief Justice David Brock, who penned the dissenting opinion in Branchflower. In a decision joined by Associate Justice John Broderick, Brock wrote, “To strictly adhere to the primary meaning of adultery in the 1961 version… is to shield one’s eyes from the sexual realities of our society.”

According to the justices, adultery is now described as “voluntary sex between a married person and someone other than that person’s spouse, regardless of either person’s sex or gender.” This definition involves some additional legal wordsmithing, such as redefining sexual intercourse as “genital contact.” The Blaisdell case involved a claim of at-fault divorce.

Both no-fault and at-fault divorces are recognized in New Hampshire. According to Lothstein, with at-fault divorce, a spouse claims acts, such as adultery, that can adversely affect the presumption that marital assets will be shared equally.
It’s difficult to say how many cases will be affected by the decision, but Lothstein said he’s been receiving congratulatory phone calls all day.

The case is now expected to be heard in a divorce court. The effects of such changes occurring in courts throughout the United States must be examined. Adultery, for example, was once described as “intercourse from which a spurious issue can arise.” This means that protecting a child’s right to know his biological father used to be the central problem of marital fidelity. However, with the rise of same-sex marriage, children have become optional in a marital relationship.

Family law can be complicated. If you’re looking for an experienced Concord divorce attorney to help you navigate the ins and outs of a difficult situation, get in touch with our team. We can help you work toward the best outcome and ensure you get everything you’re legally entitled to.

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