by Todd W. Stevens, Esquire
As most Portsmouth New Hampshire family law lawyers know, one of the most common questions clients have is how their property will be divided after their divorce is final. Property division in New Hampshire divorces is governed by a statute – RSA 458:16-a
Marital Property versus Non-Marital Property in NH Divorce Cases
The first step in determining how property will be divided is ascertaining which property is subject to division in a New Hampshire divorce.
“It is far more preferable for the parties to agree on a division of assets, however imperfect that settlement may be, than for a NH family law court to order a division.”
The answer is provided by the statute, which states: “Property shall include all tangible and intangible property and assets, real or personal, belonging to either or both parties, whether title to the property is held in the name of either or both parties. Intangible property includes, but is not limited to, employment benefits, vested and non-vested pension or other retirement benefits, or savings plans. To the extent permitted by federal law, property shall include military retirement and veterans’ disability benefits.”
The definition above is broad and includes property brought to the marriage by either party or acquired by either party during the marriage. A common misconception is that property or assets acquired prior to the marriage cannot be divided in the New Hampshire divorce. The definition, above, indicates this is incorrect.
For example, an inheritance received by one party prior to the marriage is divisible property. However, it’s important to note that the expectation of a future inheritance, or a future gift, is not marital property. The law treats future inheritances and gifts as “mere expectancies” – the person may, or may not, actually receive the gift or inheritance.
How Marital Property is Divided in a New Hampshire Divorce Action
The statute referenced above also states how marital property is to be divided. Specifically, the NH family law court typically orders an “equitable division” and presumes that an equal division is equitable. However, the court may order an unequal division if it would not be equitable or appropriate given one or more of the following factors listed in the statute:
(a) The duration of the marriage.
(b) The age, health, social or economic status, occupation, vocational skills, employability, separate property, amount and sources of income, needs and liabilities of each party.
(c) The opportunity of each party for future acquisition of capital assets and income.
(d) The ability of the custodial parent, if any, to engage in gainful employment without substantially interfering with the interests of any minor children in the custody of said party.
(e) The need of the custodial parent, if any, to occupy or own the marital residence and to use or own its household effects.
(f) The actions of either party during the marriage which contributed to the growth or diminution in value of property owned by either or both of the parties.
(g) Significant disparity between the parties in relation to contributions to the marriage, including contributions to the care and education of the children and the care and management of the home.
(h) Any direct or indirect contribution made by one party to help educate or develop the career or employability of the other party and any interruption of either party’s educational or personal career opportunities for the benefit of the other’s career or for the benefit of the parties’ marriage or children.
(i) The expectation of pension or retirement rights acquired prior to or during the marriage.
(j) The tax consequences for each party.
(k) The value of property that is allocated by a valid prenuptial contract made in good faith by the parties.
(l) The fault of either party as specified in RSA 458:7 if said fault caused the breakdown of the marriage and:
(1) Caused substantial physical or mental pain and suffering; or
(2) Resulted in substantial economic loss to the marital estate or the injured party.
(m) The value of any property acquired prior to the marriage and property acquired in exchange for property acquired prior to the marriage.
(n) The value of any property acquired by gift, devise, or descent.
(o) Any other factor that the court deems relevant.
Practical Considerations on How Marital Property is Divided in NH Divorce Cases
It’s clear that New Hampshire law broadly defines what is marital property and gives the NH family law court wide discretion in dividing marital assets. It’s important to understand the court does not mechanistically divide marital property, literally dividing each marital asset. Rather, the family law court awards each party a basket of assets that are approximately equal.
For example, assume the parties own a marital home with equity of $50,000.00. One party also started a 401(k) after the marriage with a value of $100,000.00. The marital estate is therefore worth $150,000.00 and each party is therefore entitled to one-half – $75,000.00. In this instance, the court may award the marital home, and all of the equity therein, to one party. The party receiving the marital home would then get $25,000.00 from the 401(k) account, while the other party would receive $75,000.00 from the 401(k) account. The property division would then be equal.
Another important takeaway is that the NH family law court will divide the marital assets after a final hearing only if the parties cannot settle the property division amongst themselves. It is far more preferable for the parties to agree on a division of assets, however imperfect that settlement may be, than for a NH family law judge to order a division. The family law judge doesn’t know the intrinsic value either party places on assets, nor the dynamics of the marriage. A final hearing, no matter the duration, simply isn’t long enough for the family law judge to understand the nuances of each party’s financial circumstances. Finally, a NH family law judge is disinclined to engage in a granulated analysis of each and every marital asset.
The T.W. Stevens Law Firm Helps Clients Equitably Divide Marital Assets in New Hampshire Divorces
We are experienced and aggressive New Hampshire divorce attorneys who have helped countless clients achieve fair property settlements in their NH divorce actions. Contact us today and learn why many of our clients consider us to be the best NH divorce attorneys in Portsmouth, New Hampshire.