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23May, 19

On August 1, 2017, the Supreme Court answered a unique question concerning the effect of an appeal on property divisions.  In the case of Breagy and Breagy, the trial court issued a Final Decree of Divorce in August 2014.  The wife appealed the Decree of Divorce to the New Hampshire Supreme Court who, in July 2015, affirmed the Decree.  Between August 2014 and July 2015 the husband received two inheritances.  The wife sought information regarding the inheritances and sought to reopen the property division portion of the Final Decree claiming the two inheritances were a marital property.

The Supreme Court had to resolve two conflicting issues of law.  The first is that a timely appeal prevents the underlying order going to judgment.  Technically speaking, the Final Decree issued by the trial court in August 2014 was not effective because the appeal was filed.  In opposition to that premise, RSA 458:16-a, II states that marital property includes assets owned or acquired up to the date of the divorce decree.

In resolving these two conflicting premises, the Supreme Court held that property acquired after the date of the divorce is decreed is not marital property even if a timely appeal is filed.  The Supreme Court stated that RSA 458:16-a, I clearly states that marital property is property acquired up to the date of the decree and does not speak about a pending appeal.  Moreover, the Supreme Court rationalized that if they were to hold otherwise, there would be an incentive for every party to appeal a final divorce decree in hopes that during the pendency of the appeal new property will be acquired and thus be subject to division.

 

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.