| When a marriage is breaking down, it may be prudent for one partner to move out of the marital home to protect the physical or emotional health of family members. Such a move can be a first step toward counseling and possible reconciliation, or if the marriage can’t be saved, toward filing for divorce. New clients often ask us if moving out in such circumstances might constitute abandonment or desertion, or otherwise place them at a disadvantage in divorce proceedings.
To answer this question, it may help to review some basics of divorce law. When two adults want to end their marriage in New Hampshire, the simplest approach is generally to file for divorce on the ground of “irreconcilable differences leading to an irremediable breakdown of the marriage.” Commonly known as no-fault divorce, this is the ground for over 90 percent of New Hampshire divorces. Indeed, either spouse acting alone can end a marriage this way, even if the other wants to keep the marriage intact. No-fault divorce is a fairly new development. Before no-fault divorce provisions were adopted in New Hampshire in 1979 (RSA 458:7-a), getting a divorce was more complex. One party had to prove the other was “at fault,” while he or she was free from guilt. In those bad old days, attorneys often relied on grounds of desertion, abandonment, or “refusal to cohabit.” Since then, New Hampshire has eliminated abandonment as a fault ground in divorce, and only nine fault grounds remain. We’ll take a look at them in the next issue of the Family Law Letter. Now that no-fault divorce is available, the main reason to seek divorce on a fault ground would be the possibility of unequal division of marital property—the marital home, savings, investments, and other assets. If fault is proven, or admitted, the “innocent” spouse may be entitled to a larger share. Still, proving a fault ground for divorce can be costly, since investigators and other professionals are often required, and a trial is usually needed to prove fault and establish it as the cause of the breakdown of the marriage. So unless there are very substantial marital assets, proceeding on grounds of fault for the sake of a larger share would make little economic sense. In certain cases, however, we may advise a client to file on fault grounds if the client or the children appear to be at risk due to the behavior of the other spouse. Where such behavior threatens the client’s safety or relationship with the children, filing on fault grounds such as extreme cruelty can be an important first step toward securing custody and visitation arrangements that protect both the client and the children. Each case requires careful evaluation by an attorney experienced in family law. An initial filing on fault grounds can be an important tactical tool, and as the case proceeds, we may be able to withdraw the allegation of fault in favor of a negotiated settlement that includes built-in safeguards for the client and the children. In no-fault divorce, negotiations among lawyers and their clients can often lead to a permanent agreement between the parties that forms the basis of the divorce. This kind of constructive problem solving with help from attorneys experienced in family law can avoid the cost, delay, and emotional trauma of a trial and preserve marital assets for the parties and their children. Today, moving out of a marital home, particularly to a nearby location, does not constitute a fault ground of abandonment. Courts seem well aware that a move is often necessary to protect those involved. But any person contemplating such a move should consider two guidelines: First, any move out of state with children raises serious legal issues and could lead to loss of custody. And second, the spouse who moves from a marital home could lose rights to remain in the home during or after the divorce, and might be required to pay costs to maintain the home during the pendency of the divorce if the spouse remaining there is unable to meet monthly expenses. Family Law Letter Comment. Before deciding about any move from a marital home, consult with of an attorney experienced in family law. Getting sound legal advice is even more urgent if you are worried about your safety or the safety of your children. - - Family Law Office of Amy G. Wolfson |