HIGH COURT LIMITS DIVORCE ON BASIS OF CONDUCT TO ENDANGER HEALTH AND REASON

          There are two ways to seek a divorce under New Hampshire law.  The first is to petition for divorce based upon irreconcilable differences or “no fault”.  In a no fault all that must be alleged and proven is that irreconcilable differences have occurred between the parties and as a result of these differences, the marriage has become irretrievable broken down. 

          The second method is to petition for divorce based upon fault grounds.  Unlike irreconcilable differences, a fault ground divorce requires that one party prove that the marriage failed due to the other party’s conduct.  There are only a limited number of fault grounds recognized under the New Hampshire law.  These grounds include adultery, abandonment, habitual drunkenness, extreme cruelty, or as discussed in the recent case of Guy and Guy, (decided March 5, 2009) conduct to endanger health and reason. 

          The fault ground of the conduct to endanger health and reason was first created by the state legislature in 1840.  It was intended to provide for divorce where the conduct complained of did not fall within the established definition of extreme cruelty, another recognized fault ground.  In alleging conduct to endanger health and reason, the court must determine whether the behavior actually affected the plaintiff’s physical health or emotional reasoning.  It does not require that the plaintiff show that the conduct complained of would have endangered the health of a reasonable person. 

          In the Guy case, the plaintiff claimed she discovered the defendant was exchanging emails with other women, including a former girlfriend.  In the emails the parties professed their love for each other and were sexually suggestive.  The plaintiff claims that upon discovering the email she felt angry, upset and distraught.  She petitioned for divorce and alleged the defendant’s emailing other women constituted conduct that endangered her health and reason.

          The Supreme Court concluded that the allegation that she was angry, upset and distraught was insufficient as a matter of law to show that the conduct endangered her health and reason.  The Supreme Court suggested that such conduct must be “more brutal than merely emailing a former girlfriend.”  Conduct which, in the past has been deemed sufficient to endanger health and reason, includes such things drinking alcohol on a daily basis, combined with verbal abuse and physical threats, uncontrollable anger and the use of scare tactics to intimidate the other spouse.  Other conduct which supported such a claim included the flagrant admission by one spouse to numerous affairs, excessive drinking and verbal abuse.

Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at apiela@nashualaw.com.

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