Grounds for Divorce in New Hampshire: No-Fault vs. Fault

New Hampshire is a dual-ground state — you can file for divorce based on irreconcilable differences (no-fault) or on specific acts of misconduct by your spouse (fault-based). About 90% of NH divorces use the no-fault ground, but fault-based filing carries real consequences for property division that make it worth understanding before you decide.

No-Fault Divorce (RSA 458:7-a)

The no-fault ground states that "irreconcilable differences have caused the irremediable breakdown of the marriage." You do not need to prove your spouse did anything wrong. You do not need to provide evidence beyond both parties agreeing (or one party asserting) that the marriage is irretrievably broken.

No-fault is used in roughly nine out of ten NH divorces because it avoids the emotional and procedural cost of proving misconduct in court. It works for both Joint Petitions and Individual Petitions.

Fault-Based Divorce (RSA 458:7)

Fault-based divorce requires proving that the respondent committed specific acts. Under RSA 458:7, the "innocent party" can file for divorce on any of these grounds:

• Impotency of either party
• Adultery of either party
• Extreme cruelty that endangers health or reason
• A felony conviction with imprisonment exceeding one year
• Treatment seriously injuring health or endangering reason
• Continuous absence for two years without consent
• Habitual drunkenness for two consecutive years
• Abandonment for two years without the other's consent
• Habitual use of drugs for two consecutive years

Filing on fault grounds means presenting evidence in court — testimony, documents, or records that prove the alleged misconduct. This increases the complexity, cost, and emotional toll of the divorce.

How Grounds Affect Property Division

This is where the choice matters financially. New Hampshire starts from a presumption under RSA 458:16-a that equal division of all marital property is equitable. The court divides everything 50/50 unless a statutory factor justifies deviation.

One of those statutory factors, under RSA 458:16-a(II)(l), is fault. If you can prove that your spouse's misconduct directly caused the breakdown of the marriage and resulted in either substantial physical or mental suffering or serious economic loss to the marital estate, the court can award you a disproportionate share of the assets.

In practice, this means:

• A spouse who dissipated marital funds on an extramarital relationship may receive a smaller share of remaining assets
• A spouse whose extreme cruelty caused the other to incur significant medical or therapy costs may face an unequal division
• A spouse who abandoned the family and left the other to cover all household expenses may be held accountable in the property split

Proving fault for property division purposes requires clear evidence and typically benefits from legal counsel, even if you handle other parts of the divorce yourself.

Which Ground Should You Choose?

Choose no-fault if: You want the simplest, fastest process. You and your spouse can agree on property division and custody. You do not want the emotional toll of proving misconduct in court.

Consider fault-based if: Your spouse's actions caused significant financial damage to the marital estate (gambling, hidden spending, business destruction). You have strong evidence and the financial stakes justify the added complexity.

You can file both. Some petitioners assert irreconcilable differences as the primary ground and include a fault-based ground as an alternative. This preserves the option to argue for unequal property division if settlement negotiations fail, while still allowing an amicable resolution if possible.

Keep in mind that filing on fault grounds increases friction — your spouse is far less likely to cooperate with a Joint Petition or agree to mediation when they are being accused of specific misconduct.

The New Hampshire Divorce Filing Process Guide explains how to select and present your grounds on the petition forms, with guidance on when each ground makes strategic sense for your situation.

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