Since January 1, 2010, New Hampshire has recognized same-sex marriages, providing LGBT couples with the same legal rights and protections as heterosexual married couples. This landmark change in New Hampshire law means that same-sex couples also have the right to divorce under the same legal framework that governs all marriages in the state.
History of Same-Sex Marriage in New Hampshire
New Hampshire's journey toward marriage equality began with civil unions on January 1, 2008, followed by full marriage recognition two years later.
From Civil Unions to Marriage
Before marriage was legalized for same-sex couples, New Hampshire established civil unions between same-sex partners beginning in 2008. These civil unions provided many but not all rights associated with marriage, creating limitations in areas such as federal benefits, tax treatment, and out-of-state recognition.
On June 3, 2009, Governor John Lynch signed legislation legalizing same-sex marriage, making New Hampshire the fifth state in the nation to recognize same-sex marriages. The law took effect on January 1, 2010. Civil unions entered into before the legalization of same-sex marriage automatically converted to legal marriages on January 1, 2011, unless the couples dissolved them earlier or chose to formalize them through a marriage ceremony.
Legal Recognition and Rights
Since January 1, 2010, recognized same-sex marriages in New Hampshire have provided couples with all the rights, responsibilities, and legal protections available to married couples regardless of sexual orientation. This includes spousal support, property rights, parental rights, inheritance rights, and the right to divorce.
New Hampshire also recognizes same-sex marriages performed in other jurisdictions, even if those marriages occurred before New Hampshire legalized same-sex marriage. The state extended this recognition regardless of whether the couple's home jurisdiction recognizes such marriages.
The Divorce Process for LGBT Couples
The divorce process for same-sex couples follows the same legal framework as divorces for heterosexual couples, though certain unique considerations may arise.
No Difference in Legal Process
Divorce in New Hampshire for same-sex couples proceeds under identical laws and procedures as other divorces. The grounds for divorce, residency requirements, property division principles, and custody determinations apply equally regardless of the parties' sexual orientation or gender.
Filing Requirements
To file for divorce, at least one spouse must meet New Hampshire's residency requirements. The petitioner must have lived in New Hampshire for one year before filing, both spouses must live in New Hampshire when the divorce starts, or the respondent must be personally served within the state.
Same-sex couples can file either individual petitions or joint petitions for divorce. Filing a joint petition eliminates the requirement to formally serve the other spouse with divorce papers, reducing costs and simplifying the initial process.
Grounds for Divorce
New Hampshire is a no-fault divorce state. Same-sex couples most commonly file based on irreconcilable differences that have caused the irremediable breakdown of the marriage. This means the marriage has broken down permanently and cannot be repaired.
Fault-based grounds remain available, including adultery, extreme cruelty, abandonment, habitual substance abuse, and other statutory grounds. The New Hampshire Supreme Court has clarified that adultery applies to same-sex relationships, defining it as voluntary sexual intercourse between a married person and someone other than their spouse, regardless of the sex or gender of either person.
Property Division in Same-Sex Divorce
New Hampshire applies equitable distribution principles to divide marital property in all divorces, including those involving same-sex couples.
Equitable Distribution Standard
Courts begin with the presumption that equal division represents fair distribution. However, judges consider numerous factors to determine what constitutes equitable division of assets, including the length of the marriage, each spouse's financial circumstances, contributions to the marriage, earning capacity, and other relevant considerations.
Length of the Marriage Considerations
One unique issue that can arise in same-sex divorces involves determining the length of the marriage for purposes of property division and spousal support. Same-sex marriages have only been legal in New Hampshire since 2010, and civil unions have only beenrecognized since 2008.
However, many same-sex couples lived together in committed relationships for years or decades before marriage became legal. Questions arise as to whether periods of pre-marital cohabitation should be recognized when calculating marriage length, particularly since such periods typically are not recognized for heterosexual marriages. Courts address these issues on a case-by-case basis, considering the specific circumstances and equitable principles.
Division of Assets
All marital property is subject to division, including real estate, bank accounts, retirement accounts, investments, business interests, and personal property. Courts apply the same equitable distribution principles to same-sex couples as to all married couples, aiming for fair rather than necessarily equal division.
Spousal Support and Alimony
New Hampshire law provides for spousal support (alimony) in same-sex divorces under the same standards applied to all divorces.
Types of Alimony
Courts can award term alimony to allow both parties to maintain a reasonable standard of living, or reimbursement alimony to compensate one spouse for economic or non-economic contributions to the other spouse's financial resources.
To receive term alimony, the recipient spouse must lack sufficient income or property to meet their needs, be unable to support themselves through appropriate employment or have childcare responsibilities limiting work, and the paying spouse must be able to meet both parties' needs.
Calculating Support
The court generally uses a mathematical formula based on 30 percent of the difference between the parties' gross incomes to calculate term alimony. However, courts can adjust this amount based on special circumstances, including health issues, earning capacity, the length of the marriage, and other factors.
The maximum duration for term alimony is typically 50 percent of the marriage length, though courts can extend this period when fairness requires adjustment. Term alimony ends if the recipient spouse remarries before the alimony payments conclude.
Parental Rights and Child Custody
Child custody and parental rights present unique considerations in some same-sex divorces, particularly when both partners are not legally recognized as parents.
Best Interests of the Child
Courts determine parental rights and responsibilities based on the best interests of the child, applying statutory factors that include each parent's ability to provide a stable environment, the child's relationship with each parent, caregiving history, and other relevant considerations. These standards apply equally to same-sex couples and all parents.
Parental Recognition Issues
When same-sex couples have children, questions can arise regarding legal parentage, particularly if both partners are not biologically related to the child or if the non-biological parent has not legally adopted the child. Relationships between same-sex parents often involve assisted reproduction, including donor insemination, surrogacy, or other methods.
If both partners are not legally recognized as parents through birth certificates, adoption, or other legal mechanisms, serious custody and parenting plan issues may arise during divorce. The non-biological, non-adoptive parent may face challenges establishing parental rights.
Protecting Parental Rights
Same-sex couples should ensure that both partners have established legal parental rights before separation occurs. This typically involves stepparent or second-parent adoption for the non-biological parent. Once both partners have established legal parental status, custody determinations proceed under the same standards applied to all parents.
Parenting Plans
As with all divorces involving minor children, same-sex couples must develop parenting plans addressing decision-making responsibility, residential responsibility, parenting schedules, transportation, information sharing, and dispute resolution procedures. Both parents must complete the Child Impact Seminar before finalizing their divorce.
Child Support in Same-Sex Divorces
Child support obligations in same-sex divorces follow the same guidelines and calculations applied to all child support cases.
Calculating Support
New Hampshire uses child support guidelines based on both parents' incomes, the number of children, and the time each parent spends with the children. The guidelines apply equally regardless of whether the parents are same-sex or opposite-sex couples.
Courts can deviate from the guidelines based on special circumstances, including extraordinary medical expenses, educational costs, or other factors affecting the children's needs or the parents' financial circumstances.
Unique Considerations in LGBT Divorce
While the legal process remains consistent, certain unique issues may arise in same-sex divorces.
Federal Recognition and Tax Implications
Since the federal government now recognizes same-sex marriages following the Supreme Court's decision in United States v. Windsor and Obergefell v. Hodges , same-sex divorcing couples generally receive the same tax treatment as opposite-sex couples regarding alimony, property transfers, and other financial matters.
Out-of-State Marriage Recognition
Couples who married in other states or jurisdictions before New Hampshire recognized same-sex marriage can still divorce in New Hampshire, provided they meet the state's residency requirements. New Hampshire recognizes valid same-sex marriages from other jurisdictions regardless of when they occurred.
Civil Union Conversions
For couples who entered civil unions before 2010, those unions either converted automatically to marriages on January 1, 2011, or the couples formalized them through marriage licenses. If any civil unions remain, they must be dissolved through the same divorce process applicable to marriages.
Working with Family Law Attorneys
Given the complexities that can arise in same-sex divorces, particularly regarding parental rights, property division when marriages follow long-term cohabitation, and evolving legal precedents, working with experienced family law attorneys familiar with LGBT divorce issues proves beneficial.
Finding Knowledgeable Representation
Seek attorneys with specific experience handling same-sex divorces who understand both the legal framework and the unique considerations that may arise. Organizations like GLAD (Gay & Lesbian Advocates & Defenders) can provide referrals to qualified family law attorneys.
Legal Protections
Experienced same-sex divorce lawyers can help protect parental rights, ensure equitable property division accounting for the full history of the relationship, address spousal support issues fairly, and navigate any unique circumstances arising from the relatively recent legalization of same-sex marriage.
New Hampshire LGBT Divorce Summary
New Hampshire LGBT divorce follows the same legal process as all divorces in the state, with same-sex couples receiving equal treatment under family law since marriage was legalized on January 1, 2010. The divorce process involves the same residency requirements, grounds for divorce, including the irremediable breakdown of the marriage or fault-based grounds, equitable distribution of assets, and considerations for spousal support and child custody.
While the legal framework applies equally to all married couples regardless of sexual orientation, certain unique issues may arise in same-sex divorces. These include determining the length of the marriage when couples cohabited for years before marriage became legal, establishing parental rights when both partners are not biological parents, and addressing the historical context of civil unions that converted to marriages.