Who Gets What? An Overview Of Marital Property In NHOctober 28, 2016 11:27 am
One of the most contested issues in any divorce aside from issues related to minor children is the division of marital property. In New Hampshire the Court has broad discretion to determine property distribution. Generally speaking it is an uphill battle to attempt to challenge the Court’s decision on appeal and requires a showing that the Court exercised unsustainable discretion, or an error of law when it divided the marital estate.
RSA 458:16-a is the relevant New Hampshire statute that governs distribution of the marital estate. It says that the Court should presume an equal division of the marital property unless the Court determines it would be fair to have an unequal distribution. The statute goes on to list a number of factors such as: (a) the duration of the marriage; (f) the actions of either party during the marriage that contributed to the growth or diminution of the value of the marital estate; and (l) the fault of either party, if it caused the breakdown of the marriage. The last factor listed is a catchall stating (o) any other factor the Court deems relevant. The Court need not apply these factors in a mechanical way and it need not weigh each of these factors the same in each case.
The Court will consider all property owned by either spouse at the time of the divorce, regardless of the source, to be part of the marital estate and subject to division. See, In the matter of Paula Geraghty and Kenneth Geraghty for a discussion of this topic. The Court may consider when and how certain property was acquired, but if it is possessed by either spouse at the time of divorce it will likely be considered marital property unless a party can convince the Court that it shouldn’t be. The Court will take the same approach to dividing marital debt.
While the Family Courts have tried to make the process of divorce easier to navigate without a lawyer you should be mindful that all of your property and debts will be divided and you should consider seeking the advice of an experienced attorney before you go through this process.
This post was written by Jonathan Cohen