NH divorce lawyers regularly see adultery cases in which one spouse claims the other committed adultery, cheated, was unfaithful, had an extramarital affair, etc. This spouse often blames the adultery or infidelity for the breakdown of the marriage and seeks vindication through the New Hampshire divorce process.
“The party alleging adultery must specifically prove that his/her spouse had “voluntary sexual intercourse” with someone other than his/her spouse.”
Legal Definition of Adultery in New Hampshire Divorce Cases
Adultery is a fault ground for divorce in New Hampshire. Adultery is defined as voluntary sexual intercourse between a married man and someone other than his wife or between a married woman and someone other than her husband. The person with whom the husband/wife is alleged to have had an extramarital affair is added to the New Hampshire divorce action, if their identity is known, as a co-respondent.
How Adultery is Proved in New Hampshire Divorce Cases
The party alleging adultery must specifically prove that his/her spouse had “voluntary sexual intercourse” with someone other than his/her spouse. Rumors, innuendo, and circumstantial evidence are often insufficient to prove that voluntary sexual intercourse occurred. Further, because adultery is still a crime in New Hampshire (as of the writing of this blog post), the party accused of adultery, as well as his/her alleged paramour, can exercise their fifth amendment privilege against self-incrimination and refuse to provide evidence of any infidelity. The New Hampshire Supreme Court has previously held that sexual relations between homosexuals does not constitute adultery.
What Happens if the Court Finds Adultery Caused the Breakdown of the Marriage?
If the New Hampshire family court finds that adultery caused the irremediable breakdown of the marriage, and further finds that the adultery caused substantial physical or mental pain and suffering; or resulted in substantial economic loss to the marital estate or the injured party, it can take adultery into account in dividing marital property and determining the amount of alimony.
Adultery and Parental Rights and Responsibilities
A finding of adultery had no effect on either party’s parental rights and responsibilities unless the circumstances of the adultery are shown to not be in the best interests of the minor children. A common example occurs when the party committing adultery subsequently enters a relationship with a person abusing alcohol or drugs, or who has a history of domestic violence or criminal activity.
NH Adultery – Pros and Cons
That adultery is emotionally painful goes without saying. It’s normal to seek to punish the unfaithful spouse for his/her actions and “expose” their infidelity in a court proceeding.
Pros of a pursuing an Adultery case
There are good reasons to file a divorce petition based upon adultery.
“Sometimes a spouse’s adultery did, in fact, cause substantial economic loss to the marital estate. Extravagant gifts and trips to exotic locales drained the marital estate of tens of thousands of dollars.”
First, there are instances where adultery indisputably caused an otherwise healthy marriage to fail. Such situations include situations where on spouse was habitually unfaithful to the other spouse. Such individuals are sometimes labeled “sex addicts” although whether or not this is a true addiction is subject to debate.
Second, there are also instances where adultery genuinely caused substantial mental pain and suffering. In these cases, one spouse credibly claims, and medical evidence proves, that the adultery caused the spouse to suffer from anxiety, depression, mood disorders, substance abuse or other problems.
Third, sometimes a spouse’s infidelity did, in fact, cause substantial economic loss to the marital estate. Extravagant gifts and trips to exotic locales drained the marital estate of tens of thousands of dollars.
Fourth, all of the world’s major religions condemn adultery. Practitioners of those religions feel strongly that a party who commits adultery should answer for it in court.
Cons of pursuing an Adultery case
However, there are very good reasons to avoid filing a divorce petition based on adultery.
First, fault-based divorces are costly. The unfaithful spouse seldom, if ever, admits that the adultery caused the marriage to fail. As a result, the New Hampshire family court must find, usually after a lengthy final hearing, that adultery occurred. That usually means thousands, or tens of thousands, paid to lawyers in legal fees.
“An allegation of adultery is positively poisonous to ongoing efforts by the parties to co-parent their children. The level of acrimony between the parties in a fault-based divorce is the stuff of legend.”
Second, adultery can be hard to prove. Neither party to the extramarital relationship will testify on this topic, thereby depriving the accuser of direct evidence. The accused oftentimes will assert the infidelity was a symptom of a marriage that had already failed and testify about very personal aspects of the marriage to demonstrate this to the court.
Third, an allegation of adultery is positively poisonous to ongoing efforts by the parties to co-parent their children. The level of acrimony between the parties in a fault-based divorce is the stuff of legend.
Fourth, adultery allegations are generally not well-received by New Hampshire family courts. In divorce cases, the court is typically far more concerned with the welfare of the children, an equitable property distribution, and the correct amount of alimony and child support.
Finally, a finding of adultery typically changes little in terms of the actual divorce itself. Rare is the case where one party can prove the adultery caused substantial pain or economic loss. As a result, the adultery does not affect the property division or alimony aspects of the case. The only lasting legacy of a fault finding is often bitterness and residual anger years after the divorce is over.
Contact the T.W. Stevens Law Firm if You are Considering Filing a Divorce Petition based upon Adultery
We offer a free one-half hour consultation at which we will discuss how adultery fits into your divorce. Our offices are conveniently located in Portsmouth and Dover, New Hampshire. We offer unbundled legal services in New Hampshire divorce and parenting cases. View our client testimonials!