On January 1, 2010, New Hampshire became one of the handful of states that recognize same sex marriages. Prior to January 2010, New Hampshire allowed same sex civil unions. Whether the same sex parties have a civil union or marriage, New Hampshire law allows them to proceed in a divorce in the same manner as a heterosexual couple. This means that same sex couples will be able to litigate such issues as property distribution, child support, parental rights and responsibilities, and alimony.
However, this statute creates a number of unique problems for same sex couples. For example, in deciding whether to award alimony or how to divide property, one of the factors the court would consider the length of the “marriage.” Same-sex marriages have only been legal in New Hampshire since 2010. Civil unions, the predecessor to same-sex marriages were only legal since approximately 2007. However, many couples have lived together in a committed relationship for a much longer period of time. The question arises as to whether these periods of pre-marital cohabitation would be recognized as part of the length of the “marriage” when they would not be recognized in determining the length of a heterosexual marriage.
Another concern that arises is the statutory fault grounds that can be considered in granting a divorce. One such fault ground recognized in New Hampshire is adultery. However in a case which predates the civil union and same-sex marriage statutes, In re: Blanchflower, the New Hampshire Supreme Court, in a divided opinion, stated that adultery can only occur in a heterosexual relationship. A same-sex relationship, which in Blanchflower involved the wife and another female, would not give the husband grounds to seek a divorce based upon adultery. The question is whether Blanchflower remains valid given that the parties in a same-sex marriage can be divorced for the same reasons in a heterosexual marriage can be divorced.
Issues also occur in post-divorce areas. For example, the New Hampshire Supreme Court has stated that an alimony recipient’s cohabitation with an unrelated party does not necessarily allow the paying spouse a basis to seek a reduction or termination of the alimony obligation. The rationale adopted by the New Hampshire Supreme Court is that merely cohabitating together does not place an obligation on one of the cohabitating parties to support the other party. However, a question would arise as to whether an alimony recipient who enters into an exclusive same-sex relationship in a state that does not recognize civil unions or same-sex marriages would risk the loss of alimony. The paying spouse could argue that even though the new couple has not solemnized their union, because New Hampshire would recognize this union and the couple may be holding themselves out as a same-sex partnership, there is enough evidence to suggest that this new couple has a de-facto marriage which would impact a re-determination of alimony.
In short, couples in a same-sex marriage or civil union should consult with an attorney familiar with family law in the event their relationship ends so that their respective rights and obligations can be clearly defined and/or protected.
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 [email protected].