22Mar, 16

Learning that your spouse has been unfaithful can be one of the most painful experiences a person endures. The discovery of your spouse’s infidelity results in significant grief, anger, and feelings of betrayal. These emotions can arise in situations where there has been sexual contact between a spouse and a third party, but can result in equally painful feelings when there has been “an emotional affair” where the spouse develops a significant, inappropriate emotional even if not sexual connection with a third party. While many people consider such a situation an affair, New Hampshire law is much more limited in its definition of adultery.

In New Hampshire, adultery is limited to circumstances where the spouse has sexual intercourse with a person of the opposite gender. The New Hampshire Supreme Court has ruled that sexual intercourse does not include all types of sexual contact.  The Court states that sexual intercourse is limited to sexual acts that could lead to the conception of a baby. Accordingly, a same-sex affair does not rise to the level of adultery under New Hampshire law. Similarly, an emotional affair does not constitute adultery for purposes of obtaining an divorce. However, an emotional affair, which causes significant emotional distress to the innocent spouse, may result in a separate fault ground known as “conduct to injure health and reason”.

Please contact one of the attorneys at Hamblett & Kerrigan, PA if you have any questions regarding what conduct constitutes adultery under New Hampshire law or for any questions regarding the divorce process.

Kevin P. Rauseo is a director at Hamblett & Kerrigan P.A. He concentrates his practice in the areas of family and divorce law, Collaborative law, child custody and visitation, child support and alimony, personal injury, insurance defense, slip and fall accidents, automobile and truck accidents, motorcycle accidents, premises liability, dog bites and civil litigation. He is a member of the International Academy of Collaborative Professional and has previously served on the Public Education Advisory Panel of the Academy and Professional Development Committee. He is also a founding member of the American Academy for Certified Financial Litigators and a member of the Collaborative Law Alliance of New Hampshire. AV Preeminent Rated by Martindale-Hubbell. Recipient of the 2014 Nationally Ranked Top 10 Attorney Award from the National Academy of Family Law Attorneys (NAFLA). You can reach Attorney Rauseo at