New Hampshire divorce influencing factors determine how courts divide property, award support, and make custody decisions when marriages end. Understanding these factors helps divorcing spouses anticipate outcomes, prepare effective strategies, and protect their interests throughout the divorce process.
New Hampshire follows equitable distribution principles when dividing marital property, meaning courts divide assets and debts fairly rather than equally. This fundamental concept shapes how divorce-influencing factors operate in the state.
Presumption of Equal Division
New Hampshire courts begin with the presumption that a 50/50 division of marital assets represents equitable distribution. This starting point differs from many equitable distribution states that do not presume equal division. However, this presumption can be modified based on various statutory factors the court considers relevant to achieving fairness.
What Constitutes Marital Property
In New Hampshire, nearly all property is subject to division in divorce. The marital estate includes property held solely in one spouse's name, assets acquired through gifts or inheritance, retirement accounts including 401(k)s and pensions, real estate and personal property, bank accounts and investments, and business interests and professional practices.
This broad definition means that even property acquired before marriage or received as a gift may be considered when determining equitable distribution, though courts may allocate such property to the original owner depending on other influencing factors.
Statutory Factors Affecting Property Division
New Hampshire law under RSA 458:16-a establishes more than seventeen factors courts consider when determining equitable property division.
Duration of Marriage
The length of the marriage significantly influences property division. In short-term marriages lasting one to two years, courts generally attempt to return parties to their pre-marriage financial positions. In long-term marriages of ten years or more, courts presume equal division represents fairness, though this presumption can be overcome by other factors.
Middle-duration marriages fall between these approaches, with courts carefully weighing all circumstances to determine fair distribution.
Age, Health, Social or Economic Status
Courts consider each spouse's age and health when dividing property and determining support. Older spouses or those with health issues may receive greater consideration regarding their ability to acquire future assets and income. Social or economic status reflects each party's position and circumstances, influencing what the court deems equitable given the overall situation.
Occupation, Vocational Skills, and Employability
Each spouse's occupation, vocational skills, and employability directly impact property division decisions. A spouse with strong earning capacity and marketable skills has greater opportunity to acquire capital assets and income in the future. Courts may allocate more property to the spouse with limited employment prospects to compensate for this disparity.
Vocational experts may evaluate a spouse's earning capacity when employment history or current circumstances do not fully reflect true earning potential.
Amount and Sources of Income
Courts examine the amount and sources of income for each spouse when determining equitable distribution. Income includes wages, salaries, bonuses, commissions, self-employment income, rental income, investment income, and any other regular income sources.
Financial affidavits detail all income sources, providing the court with comprehensive information about each party's financial circumstances. Accurate disclosure remains critical, as hiding income can result in severe penalties and negatively affect credibility.
Opportunity to Acquire Capital Assets and Income
Perhaps the most significant factor in property division cases, the opportunity of each party for future acquisition of capital assets and income allows courts to account for disparities in earning potential. The higher-earning spouse typically has far greater opportunity to rebuild wealth after divorce, potentially justifying an unequal division favoring the lower-earning spouse.
This factor recognizes that spouses leave marriage in different financial positions and attempts to balance immediate property division against future earning capacity.
Contributions to the Marriage
Courts carefully examine how each spouse contributed to the marriage when determining equitable property division.
Financial Contributions
Direct financial contributions include income earned during marriage, property brought into the marriage, and investments made in marital assets. Courts recognize that both wage-earning and non-wage-earning spouses make valuable contributions to the marital partnership.
Non-Financial Contributions
Significant disparity between parties in contributions to the marriage affects property division. Non-financial contributions include care and education of children, care and management of the home, support that enabled the other spouse's career advancement, and sacrifices of personal career opportunities for family benefit.
Courts recognize that a spouse who stayed home to raise children or manage the household made contributions equal in value to financial contributions, even though no direct income resulted.
Career Development Support
Courts consider any direct or indirect contribution made by one party to help educate or develop the career or employability of the other party. A spouse who worked to support the other through professional school or sacrificed career advancement for the family's benefit may receive compensation through property division.
Interruptions of either party's educational or personal career opportunities for the benefit of the other's career or for the marriage and children influence how courts divide marital assets.
Actions Affecting Property Value
Courts examine actions by either spouse during marriage that contributed to growth or diminution in value of property owned by either or both parties.
Actions Increasing Value
Contributions that increased property value may entitle a spouse to greater consideration during division. Examples include improvements to real estate, building a business, prudent investment decisions, and debt reduction.
Actions Decreasing Value
Conversely, actions that decrease marital estate value may result in the responsible spouse receiving less property. Examples include gambling losses, wasteful spending, dissipation of assets, transferring property to hide it from division, and poor business decisions.
Courts carefully scrutinize financial transactions during divorce proceedings to ensure neither spouse improperly reduces the marital estate subject to division.
Custodial Parent Considerations
When minor children are involved, additional factors influence property division to protect children's interests.
Ability to Maintain Employment
Courts consider the ability of the custodial parent to engage in gainful employment without substantially interfering with the interests of minor children. A parent with primary residential responsibility may have limited employment opportunities due to childcare obligations.
This factor recognizes that custodial responsibilities affect earning capacity and future asset acquisition ability, potentially justifying greater property allocation to the custodial parent.
Need for Marital Residence
The need of the custodial parent to occupy or own the marital residence and to use or own household effects significantly influences property division. Courts prioritize stability for children, often awarding the marital home to the custodial parent to avoid disrupting children's lives.
This consideration balances children's best interests with equitable property division between spouses.
Retirement and Pension Rights
Expectation of pension or retirement rights acquired prior to or during the marriage represents another critical influencing factor.
Valuing Retirement Assets
Retirement accounts often constitute substantial marital assets requiring careful valuation and division. Courts consider vested and non-vested pension rights, 401(k) and IRA balances, deferred compensation arrangements, and military or government retirement benefits.
Actuaries may be necessary to value retirement benefits not yet in payout status, ensuring accurate assessment for equitable distribution.
Division Methods
Retirement accounts can be divided immediately through qualified domestic relations orders for employer plans or trustee-to-trustee transfers for IRAs. Alternatively, division may be deferred until the account owner retires, with both parties receiving benefits at that time.
Tax Consequences
Tax consequences for each party influence property division decisions, as courts recognize that after-tax value differs from gross value.
Capital Gains Considerations
Appreciated assets carry embedded capital gains taxes that affect true value. A spouse receiving highly appreciated property may face substantial tax liability upon eventual sale. Courts account for these tax implications when determining equitable distribution.
Retirement Account Taxation
While properly structured transfers avoid immediate taxation, future withdrawals from retirement accounts face income tax. Understanding each account's tax treatment ensures fair division based on actual after-tax value.
Prenuptial Agreements
The value of property allocated by a valid prenuptial contract made in good faith by the parties influences how courts divide remaining assets.
Enforceability
Courts generally enforce prenuptial agreements that meet legal requirements, including full financial disclosure, voluntary execution without coercion, fair and reasonable terms, and proper legal representation for both parties.
Valid prenuptial agreements can significantly limit court discretion regarding certain assets, making other property subject to more careful division.
Fault-Based Considerations
Fault of either party if said fault caused the breakdown of the marriage, represents another influencing factor in New Hampshire divorce.
Fault Divorces and Property Division
While New Hampshire allows no-fault divorce based on irreconcilable differences, parties may also file for divorce on fault grounds, including adultery, extreme cruelty, abandonment, habitual substance abuse, and conviction of serious crimes.
Impact on Division of Assets
For fault to significantly affect property division, the petitioner must prove the fault caused either extreme emotional distress requiring counseling or medical care, or substantial economic loss to the marital estate beyond normal divorce impacts.
When proven, fault can justify unequal division, compensating the innocent spouse for abuse or financial harm caused by the guilty spouse's actions.
Property Acquired Before Marriage
The value of any property acquired before the marriage and property acquired in exchange for property acquired before the marriage influences equitable distribution.
Separate Property Considerations
While all property is technically subject to division in New Hampshire, courts often allocate pre-marital property to the original owner. However, appreciation in the value of separate property during marriage may be considered marital and subject to division.
Maintaining clear documentation of pre-marital assets helps establish their separate nature during divorce proceedings.
Gifts and Inheritances
The value of any property acquired by gift, devise, or descent affects how courts divide the overall marital estate.
Treatment of Inherited Assets
Assets received through inheritance generally remain with the inheriting spouse. However, if commingled with marital assets or used for marital purposes, inherited property may lose its separate character and become subject to division.
Other Relevant Factors
Courts may consider any other factor deemed relevant to achieving equitable distribution. This catch-all provision allows consideration of unique circumstances not covered by statutory factors.
Judicial Discretion
New Hampshire judges enjoy considerable discretion in property division decisions. No fixed rules determine how much weight each factor receives or how factors interact to influence final outcomes.
This discretion means that experienced family law representation proves invaluable in presenting compelling arguments about which factors should control in specific cases.
Spousal Support Influencing Factors
Many of the same factors affecting property division also influence spousal support determinations.
Ability to Pay and Need
Courts consider whether the lower-earning spouse lacks sufficient income and property to maintain a reasonable standard of living, whether that spouse can support themselves through appropriate employment or is limited by childcare responsibilities, and whether the paying spouse can meet their own needs while also meeting the recipient's needs.
Duration and Amount
Spousal support calculations consider income disparity, standard of living during marriage, marriage duration, and age and health of both parties. Term alimony typically lasts no longer than half the marriage length, though courts may deviate based on special circumstances.
Child Support Considerations
Child support calculations follow New Hampshire guidelines based on the combined parental income and the number of children.
Deviation Factors
Courts may deviate from guideline amounts based on extraordinary medical, dental, or education expenses, significantly high or low income, economic consequences of stepparents and other children, and tax consequences of support arrangements.
Moving Forward
New Hampshire divorce influencing factors create a comprehensive framework for achieving equitable outcomes when marriages end. Courts carefully examine duration of marriage, age and health of spouses, occupation and earning capacity, amount and sources of income, opportunity to acquire capital assets and income in the future, contributions to the marriage both financial and non-financial, actions affecting property values, custodial parent needs, retirement and pension rights, tax consequences, prenuptial agreements, fault considerations, and separate property acquired before marriage or through gift or inheritance.
Whether pursuing fault divorces or no-fault dissolution based on the breakdown of the marriage, parties receive fairer outcomes when they understand the influencing factors courts apply. Working with experienced family law attorneys who comprehend how New Hampshire courts weigh these factors ensures effective advocacy and protection of rights throughout the property division process and resolution of all financial matters in divorce.