TITLE XLIII
DOMESTIC RELATIONS

Chapter 458
ANNULMENT, DIVORCE AND SEPARATION

Void Marriages

Section 458:1

    458:1 Without Decree. – All marriages prohibited by law on account of the consanguinity or affinity of the parties, or where either has a former wife or husband living, knowing such wife or husband to be alive and knowing that their marriage had not been legally dissolved, if solemnized in this state, shall be absolutely void without any legal process.

Source. RS 148:1. CS 157:1. GS 163:1. GL 182:1. PS 175:1. PL 287:1. RL 339:1. RSA 458:1. 1981, 160:6, eff. Aug. 1, 1981.

Section 458:2

    458:2 Petitions. – If any doubt exists whether any marriage is void, or as to the effect of any former decree of divorce or nullity between the parties, a petition may be filed as in other cases, and a decree of divorce or nullity may be made.

Source. RS 148:2. CS 157:2. GS 163:2. GL 182:2. PS 175:2. PL 287:2. RL 339:2. 2004, 114:2, 3, eff. May 17, 2004.

Section 458:3

    458:3 Jurisdiction. – In any proceedings for annulment for any cause whether under statute or under common law, the court shall have jurisdiction to declare an annulment of a marriage entered into in this state even though neither party has been at any time a resident herein.

Source. 1945, 12:1, eff. Feb. 13, 1945.

Jurisdiction to Grant Divorce

Section 458:4

    458:4 Limitation. – The jurisdiction of the court to grant divorce is limited to cases where there is jurisdiction over the parties and of the alleged cause as defined in RSA 458:5 and 458:6.

Source. 1883, 14:1. PS 175:3. PL 287:3. RL 339:3.

Section 458:5

    458:5 Over Parties. –
Jurisdiction of the parties exists in the following cases only:
I. Where both parties were domiciled in the state when the action was commenced.
II. Where the plaintiff was so domiciled and the defendant was personally served with process within the state.
III. Where the plaintiff was domiciled in the state for one year next preceding the time when the action was commenced.
Where the domiciled plaintiff has filed a petition, the non-domiciled defendant may have affirmative relief upon filing a cross petition.

Source. 1883, 14:1. PS 175:3. PL 287:4. RL 339:4. 2004, 114:2, eff. May 17, 2004.

Section 458:6

    458:6 Over Cause of Action. – Jurisdiction of the cause for divorce exists when it wholly arose or accrued while the plaintiff was domiciled in the state, and not otherwise.

Source. 1883, 14:1. PS 175:3. PL 287:5. RL 339:5.

Causes for Divorce

Section 458:7

    458:7 Absolute Divorce, Generally. –
A divorce from the bonds of matrimony shall be decreed in favor of the innocent party for any of the following causes:
I. Impotency of either party.
II. Adultery of either party.
III. Extreme cruelty of either party to the other.
IV. Conviction of either party, in any state or federal district, of a crime punishable with imprisonment for more than one year and actual imprisonment under such conviction.
V. When either party has so treated the other as seriously to injure health or endanger reason.
VI. When either party has been absent 2 years together, and has not been heard of.

[Paragraph VII effective until January 1, 2023; see also paragraph VII set out below.]


VII. When either party is an habitual drunkard, and has been such for 2 years together.

[Paragraph VII effective January 1, 2023; see also paragraph VII set out above.]


VII. When either party habitually abuses alcohol or drugs and has been doing so for 2 or more years together.
VIII. When either party has joined any religious sect or society which professes to believe the relation of husband and wife unlawful, and has refused to cohabit with the other for 6 months together.
IX. When either party, without sufficient cause, and without the consent of the other, has abandoned and refused, for 2 years together, to cohabit with the other.
X-XIII. [Repealed.]

Source. RS 148:3. CS 157:3. GS 163:3. GL 182:3. PS 175:5. PL 287:6. 1938, 4:1. RL 339:6. RSA 458:7. 1957, 67:1. 1999, 198:1, eff. Jan. 1, 2000. 2022, 114:1, eff. Jan. 1, 2023.

Section 458:7-a

    458:7-a Absolute Divorce, Irreconcilable Differences. – A divorce from the bonds of matrimony shall be decreed, irrespective of the fault of either party, on the ground of irreconcilable differences which have caused the irremediable breakdown of the marriage. In any pleading or hearing of a petition for divorce under this section, allegations or evidence of specific acts of misconduct shall be improper and inadmissible, except where parental rights and responsibilities are an issue and such evidence is relevant to establish that a particular allocation of parental rights and responsibilities would be detrimental to the child or at a hearing where it is determined by the court to be necessary to establish the existence of irreconcilable differences. If, upon hearing of an action for divorce under this section, both parties are found to have committed an act or acts which justify a finding of irreconcilable differences, a divorce shall be decreed and the acts of one party shall not negate the acts of the other nor bar the divorce decree. The court's findings and decree may be based on oral testimony or written stipulations of the parties.

Source. 1971, 445:1. 1998, 53:1. 2004, 114:2. 2005, 273:2, eff. Oct. 1, 2005.

Section 458:7-b

    458:7-b Reconciliation. – Whenever, before or during a hearing but before a final decree, the court shall determine that there is a likelihood for rehabilitation of the marriage relationship, the court shall refer the parties to an appropriate counseling agency within its jurisdiction, which referral may be made according to RSA 167-B or as the parties request, with the approval of the court. If the court determines that there is a reasonable possibility of reconciliation, the court shall continue the proceedings and require that both parties submit to marriage counseling. If the parties are insured, the court shall give due consideration to selecting a counselor who accepts direct payment from the parties' health insurance carrier.

Source. 1971, 445:1. 2011, 106:1, eff. July 30, 2011.

Section 458:8

    458:8 Repealed by 1971, 445:7, I, eff. Aug. 29, 1971. –

Procedure

Section 458:9

    458:9 Venue; Notice. –
All petitions initiated under RSA 168-A, RSA 458, and RSA 458-C shall be brought in the county in which either party lives and before the superior court; and notice thereof shall be given to the respondent as required by this section.
I. If the parties file a joint petition, the petition shall be filed at the appropriate court without further service or notice required.
II. An individual petition shall be filed with the appropriate court, together with the filing fee, by the petitioner. Upon the filing of a petition, the court shall issue orders of notice, attached to the petition, which the petitioner shall then serve on the respondent as provided in this section:
(a) Service within the state shall be made either by:
(1) A sheriff, in hand or by leaving an attested copy of the petition, orders of notice, and an appearance form at the respondent's abode, within 25 days of receipt of orders of notice. The return of service shall state the street and number, or some other description, of the abode. The petitioner shall file the return of service with the court as proof of service.
(2) Certified mail, return receipt requested, restricted delivery, mailed within 7 days of receipt of orders of notice, signed by the addressee only. The petitioner shall file the return receipt with the court as proof of service.
(b) Service outside the state shall be made either by:
(1) An officer authorized to make service of process in the state where the respondent lives. Proof of out-of-state service shall be made by a return of the officer under oath, accompanied by an official certificate of his or her official character or authority. The petitioner shall file the return of service with the court as proof of service.
(2) Certified mail, return receipt requested, restricted delivery, signed by the addressee only. The petitioner shall file the return receipt with the court as proof of service.
II-a. In lieu of service as described in paragraph II, the court may, after issuing orders of notice, send notice to the respondent indicating that the petition has been filed and that the respondent or the respondent's attorney may accept service at the court within 10 days. If neither the respondent nor the attorney for the respondent accepts service at the court within 10 days as specified in the correspondence, the petition shall be forwarded to the petitioner for service in accordance with paragraph II.
III. When the residence of the respondent is not known, the petition shall state the respondent's last known post office address, and the name and post office address of some near relative of the respondent, if any is known to the petitioner, and otherwise the name and post office address of some friend of the respondent, such facts to be verified by the petitioner's personal affidavit filed with the petition. The petitioner shall file the petition with the court together with the name and address of a newspaper published in the city or town nearest to the respondent's last known address. Service shall then be ordered by publication in the newspaper, with publication to be completed not less than 15 days before the return date, and by certified mail addressed to the respondent, care of the relative or friend of the respondent, or otherwise as the court may order. Publication may be waived for good cause upon motion to the court.

Source. RS 148:6. CS 157:6. GS 163:5. GL 182:5. PS 175:8. PL 287:8. RL 339:8. 2001, 147:1. 2004, 114:1; 169:4. 2005, 57:1, eff. July 1, 2005; 177:17, eff. July 1, 2005.

Section 458:10

    458:10 Repealed by 1987, 278:5, I, eff. Jan. 1, 1988. –

Section 458:11

    458:11 Service on Correspondent. – Any person not a party to the proceedings who is accused of adultery with the petitionee in a petition or cross petition for divorce or petition or cross petition for legal separation shall be duly served seasonably with an attested copy of such petition with the usual order of notice. Such service shall not be required when it appears that the third party resides outside the state or when the third party has been convicted of adultery with the petitionee as charged in the petition. Such third party, regardless of residence, shall have the right to appear and be heard in the proceedings.

Source. 1949, 145:1. 1951, 128:1. RSA 458:11. 1996, 32:1. 2004, 114:2, eff. May 17, 2004.

Section 458:12

    458:12 Insanity of Petitionee. – If the petitionee is insane and has no legal guardian other than the spouse, the court may appoint a guardian to appear for and answer for the petitionee. Although the insanity of the petitionee may be considered by the court in determining whether a divorce should be granted, such insanity shall not constitute a defense to a petition for divorce. Where a decree of divorce has been entered and where it has been proven by competent medical testimony at the divorce hearing that the petitionee was incurably insane at the time the petition for divorce was filed, the decree shall in no way relieve a spouse from any obligation imposed by law as a result of marriage to support the incurably insane spouse.

Source. RS 148:8. CS 157:8. GS 163:7. GL 182:7. PS 175:10. PL 287:10. RL 339:10. RSA 458:12. 1971, 445:2. 1996, 32:2. 2004, 114:2, eff. May 17, 2004.

Section 458:13

    458:13 Evidence of Marriage. – Upon a hearing for divorce, the admission of the marriage by the party against whom the process is instituted, general repute, the fact of cohabitation, or any other circumstantial or presumptive evidence from which the marriage may be inferred, shall be competent evidence for the consideration of the court.

Source. RS 148:9. CS 157:9. GS 163:8. GL 182:8. PS 175:11. PL 287:11. RL 339:11.

Section 458:14

    458:14 Revision of Orders, etc. – The court, upon proper application and notice to the adverse party, may revise and modify any order made by it, may make such new orders as may be necessary, and may award costs as justice may require, except as otherwise provided in RSA 458:19-aa.

Source. RS 148:16. CS 157:16. GS 163:15. GL 182:15. PS 175:18. PL 287:12. RL 339:12. 2001, 246:1, eff. Jan. 1, 2002. 2018, 310:5, eff. Jan. 1, 2019.

Section 458:15

    458:15 Clerks' Returns. – The clerks of the superior court shall, in their respective counties at which divorces are granted, make monthly returns to the registrar of vital records.

Source. 1881, 12:1. 1885, 2:1. PS 175:19. PL 287:13. RL 339:13. RSA 458:15. 1977, 279:1; 536:3. 1978, 40:2. 2003, 319:73, eff. July 1, 2003.

Section 458:15-a

    458:15-a Repealed by 2005, 273:20, I, eff. Oct. 1, 2005. –

Section 458:15-b

    458:15-b Financial Affidavits. –
I. Prior to a hearing regarding child support, property settlement, or alimony, both parties shall submit financial affidavits. The financial affidavits shall be accepted as prima facie evidence of the facts reflected therein unless challenged by a party. Any party aggrieved by a false statement in a financial affidavit filed pursuant to this chapter may file a civil action for money damages. In any such civil action, a party proving that the other party made a knowing false statement on a financial affidavit shall be entitled to receive treble damages and attorney's fees.
I-a. Except as provided in paragraph III, all financial affidavits filed under this chapter shall be confidential and accessible only to the parties, their attorneys, the guardian ad litem, department of health and human services employees responsible for child support administration, persons specified in RSA 161-B:7, III, and state and federal officials for the purpose of carrying out their official functions.
II. Any person who knowingly discloses a financial affidavit to any person not authorized to obtain the financial affidavit under this section shall be guilty of a misdemeanor. This paragraph shall not apply to documents released by a court pursuant to paragraph III.
III. Notwithstanding paragraph I, the court may grant access to a financial affidavit filed under this chapter to a person upon a showing by clear and convincing evidence that the public interest served by release of the information outweighs the private interest served by maintaining the privacy of the financial affidavit. For the purposes of this paragraph, the right of the public to access court records shall not, absent further cause, constitute sufficient evidence to overcome the presumption of privacy contained in paragraph I.

Source. 2004, 202:1. 2005, 216:1. 2015, 235:3, eff. Jan. 1, 2016.

Section 458:15-c

    458:15-c Mediation. –
I. In this section:
(a) " Contracted supervisor " means a mediator meeting the requirements of RSA 328-C:2 and RSA 328-C:5, VI who has contracted with the court to participate in court-referred mediation under this chapter.
(b) " Mediation " means a process in which a neutral third party facilitates settlement discussions between parties.
(c) " Mediator " means a family mediator, certified pursuant to RSA 328-C, who has contracted with the court to participate in court-referred mediation under this section.
(d) " Qualified intern " means a person meeting the requirements of RSA 328-C:2 who participates in mediation under the direct supervision of a contracted supervisor.
II. The court may order the parties to participate in mediation upon the request of either party or at the discretion of the court. If the parties are ordered to participate in mediation under this section, all issues relevant to their case, including but not limited to property settlement and alimony also shall be mediated unless the court orders otherwise. Mediation may not be ordered pursuant to this section if the case involves minor children and the parties are eligible for mediation under RSA 461-A:7. If the mediator is a contracted supervisor, a qualified intern may participate with the supervisor in the mediation in the supervisor's presence.
III. Reasons the court may choose not to order mediation include, but are not limited to, the following:
(a) A showing of undue hardship to a party.
(b) An agreement between the parties for alternate dispute resolution procedures.
(c) A finding of alcoholism or drug abuse unless all parties agree to mediation.
(d) An allegation of serious psychological or emotional abuse.
(e) Lack of an available, suitable mediator within a reasonable time period.
IV. The court shall not order mediation if there is a finding of domestic violence as defined in RSA 173-B:1, unless all parties agree to mediation.
V. The mediator has no authority to make a decision or impose a settlement upon the parties. The mediator shall attempt to focus the attention of the parties upon their needs and interests rather than upon their positions. Any settlement is entirely voluntary. In the absence of settlement, the parties lose none of their rights to a resolution of their dispute through litigation.
VI. Either party may move to have the mediator replaced for good cause.
VII. Mediation proceedings shall be held in private, and all communications, oral or written, made during the proceedings, which relate to the issues being mediated, whether made by the mediator, or a party, or any other person present, shall be privileged and confidential and shall not be disclosed and shall not be admissible in court, except as provided in RSA 328-C:9.
VIII. Any mediated agreement reached by the parties on all or some of the disputed issues shall be reduced to writing, signed by each party, and filed with the court as soon as practicable.
IX. The parties shall participate at mediation in good faith. If the mediator determines that mediation is not helpful in resolving the dispute, the mediator shall report that fact to the court and return the matter to the court for adjudication of the underlying issues.

Source. 2006, 147:1. 2009, 21:4, eff. Jan. 1, 2010. 2022, 220:9, 10, eff. Aug. 16, 2022.

Alimony, Allowances, Custody, Etc.

Section 458:16

    458:16 Temporary Relief and Permanent Restraining Orders. –
I. After the filing of a petition for divorce, annulment, separation or a decree of nullity, the superior court may issue orders with such conditions and limitations as the court deems just which may, at the discretion of the court, be made on a temporary or permanent basis. Temporary orders may be issued ex parte. Said orders may be to the following effect:
(a) Directing any party to refrain from abusing or interfering in any way with the person or liberty of the other party.
(b) Enjoining any party from entering the premises wherein the other party resides upon a showing that physical or emotional harm would otherwise result.
(c) Enjoining any party from contacting the other party at, or entering, the other party's place of employment or school.
(d) Enjoining any party from harassing, intimidating or threatening the other party, other party's relatives regardless of their place of residences, or the other party's household members in any way.
(e) Determining the temporary custody and maintenance of any minor children as shall be deemed expedient for the benefit of the children; provided, however, that no preference shall be given to either parent in awarding such custody because of the parent's sex.
(f) Ordering a temporary allowance to be paid for the support of the other.
(g) Enjoining any party from transferring, encumbering, hypothecating, concealing or in any way disposing of any property, real or personal, except in the usual course of business or for the necessities of life, and if such order is directed against a party, it may require such party to notify the other party of any proposed extraordinary expenditures and to account to the court for all such extraordinary expenditures.
(h) Ordering the sale of the marital residence provided that both parties have previously filed a written stipulation with the clerk of the court explicitly agreeing to the sale of the property prior to the final hearing on the merits. If the parties have not so stipulated, the sale of the marital residence shall not be ordered prior to the final hearing as long as the court deems the party residing within the marital residence to have sufficient financial resources to pay the debts or obligations generated by the property, including mortgage payments, taxes, insurance, and ordinary maintenance, as those debts and obligations come due.
II. (a) Ex parte orders may be granted without written or oral notice to the adverse party only if the court finds from specific facts shown by affidavit or by the verified petition, that immediate and irreparable injury, loss, or damage will result to the applicant, the children, or property before the adverse party or attorney can be heard in opposition.
(b) No ex parte order shall be granted without:
(1) An affidavit from the moving party verifying the notice given to the other party or verifying the attempt to notify the other party.
(2) A determination by the court that such notice or attempt at notice was timely so as to afford the other party an opportunity to be present.
(c) If temporary orders are made ex parte, the party against whom the orders are issued may file a written request with the clerk of the superior court and request a hearing thereon. Such a hearing shall be held no later than 5 days after the request is received by the clerk for the county in which the petition for divorce, annulment, separation or decree of nullity is filed.
III. When a party violates a restraining order issued under this section by committing assault, criminal trespass, criminal mischief, stalking, or another criminal act, that party shall be guilty of a misdemeanor, and peace officers shall arrest the party, detain the party pursuant to RSA 594:19-a and refer the party for prosecution. Such arrests may be made within 12 hours after a violation without a warrant upon probable cause whether or not the violation is committed in the presence of a peace officer.

Source. RS 148:10. CS 157:10. GS 163:9. GL 182:9. 1887, 100:1; 103:1. PS 175:12. 1919, 39:1. PL 287:14. RL 339:14. 1949, 240:1. RSA 458:16. 1955, 262:3. 1967, 132:18; 259:1. 1971, 445:3. 1975, 426:1. 1992, 208:1. 1994, 259:12. 1996, 32:3. 2000, 258:1. 2002, 46:1; 79:2. 2004, 114:2, eff. May 17, 2004.

Section 458:16-a

    458:16-a Property Settlement. –
I. Property shall include all tangible and intangible property and assets, real or personal, belonging to either or both parties, whether title to the property is held in the name of either or both parties. Intangible property includes, but is not limited to, employment benefits, vested and non-vested pension or other retirement benefits, or savings plans. To the extent permitted by federal law, property shall include military retirement and veterans' disability benefits.
II. When a dissolution of a marriage is decreed, the court may order an equitable division of property between the parties. The court shall presume that an equal division is an equitable distribution of property, unless the court establishes a trust fund under RSA 458:20 or unless the court decides that an equal division would not be appropriate or equitable after considering one or more of the following factors:
(a) The duration of the marriage.
(b) The age, health, social or economic status, occupation, vocational skills, employability, separate property, amount and sources of income, needs and liabilities of each party.
(c) The opportunity of each party for future acquisition of capital assets and income.
(d) The ability of the custodial parent, if any, to engage in gainful employment without substantially interfering with the interests of any minor children in the custody of said party.
(e) The need of the custodial parent, if any, to occupy or own the marital residence and to use or own its household effects.
(f) The actions of either party during the marriage which contributed to the growth or diminution in value of property owned by either or both of the parties.
(g) Significant disparity between the parties in relation to contributions to the marriage, including contributions to the care and education of the children and the care and management of the home.
(h) Any direct or indirect contribution made by one party to help educate or develop the career or employability of the other party and any interruption of either party's educational or personal career opportunities for the benefit of the other's career or for the benefit of the parties' marriage or children.
(i) The expectation of pension or retirement rights acquired prior to or during the marriage.
(j) The tax consequences for each party.
(k) The value of property that is allocated by a valid prenuptial contract made in good faith by the parties.
(l) The fault of either party as specified in RSA 458:7 if said fault caused the breakdown of the marriage and:
(1) Caused substantial physical or mental pain and suffering; or
(2) Resulted in substantial economic loss to the marital estate or the injured party.
(m) The value of any property acquired prior to the marriage and property acquired in exchange for property acquired prior to the marriage.
(n) The value of any property acquired by gift, devise, or descent.
(o) Any other factor that the court deems relevant.

[Paragraph II-a effective until January 1, 2023; see also paragraph II-a set out below.]


II-a. Tangible property shall include animals. In such cases, the property settlement shall address the care and ownership of the parties' animals, taking into consideration the animals' wellbeing.

[Paragraph II-a effective January 1, 2023; see also paragraph II-a set out above.]


II-a. Tangible property shall include animals. In such cases, the property settlement shall address the care and ownership of the parties' animals, taking into consideration the animals' wellbeing. Upon petition of either party, the court may review and modify the property settlement agreed to previously only as it pertains to this paragraph.
III. If either or both parties retain an ownership interest in an education savings account held on behalf of a child of the marriage, including a qualified tuition program under 26 U.S.C. Section 529, the court may, in its discretion, preserve the account for its original purpose or may treat the account as property of the marriage subject to equitable division under this section.
IV. The court shall specify written reasons for the division of property which it orders.

[Paragraph V effective January 1, 2023.]


V. The court shall not require a party to sell a piece of marital property if one party is able to fully and fairly compensate the other party for his or her interest in it and the sale is not required for an equitable division of property between the parties.

Source. 1987, 278:1. 2000, 178:1. 2004, 136:3, eff. May 19, 2004. 2019, 130:1, eff. Aug. 24, 2019. 2022, 186:1, 2, eff. Jan. 1, 2023.

Section 458:16-b

    458:16-b Restraining Orders Regarding Property. –
I. Upon the filing of an action under this chapter, the court shall issue an order restraining each party from selling, transferring, encumbering, hypothecating, concealing, or in any manner whatsoever disposing of any property, real or personal, belonging to either or both parties except:
(a) By written agreement of both parties;
(b) For reasonable and necessary expenses of living;
(c) In the ordinary and usual course of business;
(d) In the ordinary and usual course of investing; or
(e) By order of the court.
II. After the order is served, either party may file a written request with the clerk of the superior court for a hearing thereon. Such a hearing shall be held no later than 5 days after the request is received by the clerk for the county in which the petition for divorce, annulment or decree of nullity is filed.

Source. 1987, 278:1. 2004, 114:2, eff. May 17, 2004.

Section 458:17

    458:17 Repealed by 2005, 273:20, II, eff. Oct. 1, 2005. –

Section 458:17-a

    458:17-a Repealed by 2005, 273:20, III, eff. Oct. 1, 2005. –

Section 458:17-b

    458:17-b Repealed by 2005, 273:20, IV, eff. Oct. 1, 2005. –

Section 458:17-c

    458:17-c Repealed by 2005, 273:20, V, eff. Oct. 1, 2005. –

Section 458:17-d

    458:17-d Repealed by 2005, 273:20, VI, eff. Oct. 1, 2005. –

Section 458:17-e

    458:17-e Repealed by 2005, 273:20, VII, eff. Oct. 1, 2005. –

Section 458:18

    458:18 Repealed by 2005, 273:20, VIII, eff. Oct. 1, 2005. –

Section 458:18-a

    458:18-a Group Insurance Plans. – Upon a decree of nullity, divorce, or legal separation, if one spouse is a member of a group health insurance plan and the employer or any other sponsor is responsible for the payment of the premium required by the insurer as the consideration for providing coverage to an ex-spouse, such premium shall be paid either by the health insurance plan member, the ex-spouse of the member, or by both the member and the ex-spouse as they shall agree or as shall be ordered in the decree of divorce by the court. The provisions of this section shall apply to dental coverage provided by such group health insurance plan and shall apply whether or not the ex-spouse is receiving child support payments. This section shall apply only to continued coverage under RSA 415:18, XVI or 29 U.S.C. section 1161, and shall not affect or limit any rights of the former spouse under RSA 415:18, VII-b.

Source. 1986, 163:7. 2007, 379:4, eff. Jan. 1, 2008; 379:11, eff. Jan. 1, 2008 at 12:01 a.m.

Section 458:19

    458:19 Alimony; Definitions. –
In RSA 458:19-a and RSA 458:19-aa:
I. " Alimony " means one or more payments made to, or for the benefit of, a spouse or former spouse.
II. " Effective date " means the date when an order takes effect under court rule.
III. " Exclusions from gross income " mean Social Security benefits received on behalf of a minor child; capital gains from property received in the parties' divorce; income of a subsequent spouse, except as provided in RSA 458:19-aa, II; and income from overtime or a second job if the party has a full time job and such overtime or second income began:
(a) After the parties separated or a petition for divorce or legal separation was filed, whichever occurred first; or
(b) In an action for modification, if such income began after the existing alimony award.
IV. " Full retirement age " means the age when the payor is eligible to receive full retirement benefits under the federal Old Age, Survivors, and Disability Insurance Social Security program.
V. " Gross income " means all income from any source, whether earned or unearned, including, but not limited to, wages, salary, commissions, tips, annuities, social security benefits, trust income, lottery or gambling winnings, interest, dividends, investment income, net rental income, self-employment income, business profits, pensions, bonuses, and payments from other government programs (except public assistance programs, including aid to families with dependent children, aid to the permanently and totally disabled, supplemental security income, food stamps, and general assistance received from a county or town), including, but not limited to, workers' compensation, veterans' benefits, unemployment benefits, and disability benefits, but not exclusions from gross income as defined in paragraph III.
VI. " Income assignment " means an alimony order assigning a portion of the payor's income directly to the payee under the provisions of RSA 458-B.
VII. " Length of marriage " means the number of months from the date of marriage to the date of service of the petition for divorce, legal separation, or annulment.
VIII. " Modification " means any increase or decrease in the amount or duration in alimony, other than because of the cohabitation, remarriage, or death of the payee, or the retirement of the payor.
IX. " Payee " means a person who is receiving or is to receive alimony.
X. " Payor " means a person who is paying or is to pay alimony.
XI. " Reimbursement alimony " means one or more payments to a spouse or former spouse to compensate him or her for economic or non-economic contribution to the financial resources of the payor.
XII. " Step-down order " means an order that decreases payments in specified steps.
XIII. " Step-up order " means an order that increases payments in specified steps.
XIV. " Temporary alimony " means periodic support payments to or on behalf of a spouse while a case is pending and ending on the effective date of the divorce, legal separation, or annulment. Such alimony shall not be counted toward or subject to either the formula or the duration limits in RSA 458:19-a, III, unless the court finds that the temporary alimony was of unusually long duration.
XV. " Term alimony " means periodic payments made to a spouse or former spouse after the effective date of the final decree.

Source. RS 148:13. CS 157:13. GS 163:12. GL 182:12. PS 175:14. PL 287:16. 1937, 154:1. RL 339:16. RSA 458:19. 1981, 275:1. 1985, 175:1. 1987, 278:2. 1991, 123:1. 1996, 32:4, 5. 2000, 178:2, 3. 2001, 246:2, 3. 2005, 273:3, eff. Oct. 1, 2005. 2018, 310:1, eff. Jan. 1, 2019.

Section 458:19-a

    458:19-a Term and Reimbursement Alimony. –
I. The court may order term alimony upon agreement of the parties or in the absence of an agreement, at the request of either party by petition or motion in a case for divorce, legal separation, or annulment. Any request for alimony shall be made either before the final decree is effective or not later than 5 years from the effective date. The purpose of term alimony is to allow both parties to maintain a reasonable standard of living. If the issue of term alimony is contested, the court may order term alimony only if it finds that:
(a) The party in need lacks sufficient income, property, or both, including property apportioned in accordance with RSA 458:16-a, to provide for his or her own reasonable needs, taking into account the marital lifestyle and the extent to which the parties must both fairly adjust their standards of living based on the creation and maintenance of separate households; or
(b) The party in need is unable to be self-supporting at a standard of living that meets reasonable needs through appropriate employment, or is allocated parental rights and responsibilities under RSA 461-A for a child of the parties whose condition or circumstances make it appropriate that the parent not seek employment outside the home or limit the hours of such employment; and
(c) The party from whom alimony is sought is able to meet his or her own reasonable needs, taking into account the marital lifestyle and the extent to which the parties must both fairly adjust their standards of living based on the creation and maintenance of separate households, while meeting the reasonable needs of the party seeking alimony.
II. (a) The amount of a term alimony order shall be the lesser of the payee's reasonable need, or a formula based on 23 percent of the difference between the parties' gross incomes at the time the order is created, unless the court finds that justice requires an adjustment. In making this calculation, gross income as defined in RSA 458:19, V shall be:
(1) Reduced by subtracting amounts that are ordered and actually paid for:
(A) Child support or alimony, including child support for the parties' joint children; and
(B) Costs for health insurance coverage or other specified expenses for the benefit of the other party; and
(2) As to the payee's income, adding the amount of child support ordered for the parties' joint children.
(b) The court may vary this formula when an equal or approximately equal parenting schedule has resulted in an adjustment to the child support guidelines under RSA 458-C:5. The court may make a step-down or step-up order that begins with the current reasonable need or the formula and decreases or increases over time. If child support is a factor in determining the amount of alimony, alimony may be recalculated when child support is modified or ended, without meeting the tests for modification in RSA 458:19-aa, I.
(c) The formula percentage in subparagraph (a) of 23 percent is based on alimony not being deductible to the payor and taxable to the payee under federal income tax law. If alimony becomes deductible to the payor and taxable to the payee under federal income tax law, the formula shall be based on 30 percent of the difference between the parties' gross incomes.
III. The maximum duration of term alimony shall be 50 percent of the length of the marriage, unless the parties agree otherwise or the court finds that justice requires an adjustment under paragraph IV. If justice requires, the court may use a different beginning or ending date in measuring the length of the marriage. Term alimony shall end on the remarriage of the payee, unless the order is based on an agreement of the parties that provides otherwise.
IV. In any term alimony order, the court may adjust the formula amounts, duration limitations, or both, if the parties agree or if the court finds that justice requires an adjustment. The party seeking an adjustment shall have the burden of proof. Special circumstances that may justify an adjustment include, but are not limited to, the following:
(a) Health, including disability, chronic or severe mental or physical illness, or other unusual health circumstances of either party.
(b) The degree and duration of any financial dependency of one party on the other.
(c) Vocational skills, occupation, benefits available from employment, and the present and future employability of both parties.
(d) Voluntary unemployment or underemployment of either party.
(e) The special needs of a minor or adult child of the parties.
(f) Property awarded under RSA 458:16-a.
(g) The conduct of either party during the marriage, including abuse as defined in RSA 173-B:1, I or fault as described in RSA 458:16-a, II( l).
(h) Differences in the parties' benefits under the federal Old Age, Survivors, and Disability Insurance Social Security program.
(i) Diminution of significant assets by a party, coupled with a lack of sufficient assets from which property can be equitably divided or recouped under RSA 458:16-a.
(j) The impact of federal tax law on the parties including the allocation of applicable tax-related benefits.
(k) Any other reason the court deems material and relevant.
V. The court may order reimbursement alimony upon agreement of the parties or in the absence of an agreement, at the request of either party by petition or motion in a case for divorce, legal separation, or annulment. The request for reimbursement alimony shall be made before the final decree is effective. The purpose of reimbursement alimony is to compensate the payee for economic or non-economic contribution to the financial resources of the payor, where the property subject to division under RSA 458:16-a is either inappropriate or inadequate to provide such compensation. The contribution to the payor's financial resources may include support of education or job training, or an investment of time or money. The following shall apply to reimbursement alimony orders:
(a) The court shall make a finding that the order is equitable;
(b) The maximum time period shall be 5 years from the final decree effective date, unless the parties agree otherwise; and
(c) It shall not be modified, except by agreement.
VI. Each order granting, denying, renewing, modifying, or refusing to renew or modify term or reimbursement alimony shall state:
(a) If alimony is awarded:
(1) The type or types of alimony;
(2) The duration or number of payments, the method or methods of payment, and any limitations imposed;
(3) Whether full retirement age or actual retirement will impact payments;
(4) Whether security under RSA 458:19-aa, VI is required; and
(5) Whether the order is based on an agreement of the parties.
(b) If the proceeding was contested, the order shall include:
(1) Findings supporting the court's decision to order or deny the requested alimony;
(2) Findings as to any special circumstances justifying an adjustment to either the formula amounts or durational limitations; and
(3) Findings supporting any award of reimbursement alimony.

Source. 1955, 262:4. 1979, 342:1. 2001, 222:3, eff. Sept. 9, 2001. 2018, 310:2, eff. Jan. 1, 2019. 2021, 113:1-3, eff. July 9, 2021.

Section 458:19-aa

    458:19-aa Alimony Modification or Termination. –
I. (a) The court may modify the amount or duration of a term alimony order upon agreement of the parties or, in the absence of an agreement, at the request of either party by petition or motion. If the proceeding for modification is contested, any modification shall be supported by findings of the following, based on clear and convincing evidence:
(1) There has been a substantial and unforeseeable change of circumstances since the effective date of the alimony order;
(2) There is no undue hardship on either party; and
(3) Justice requires a change in amount or duration.
(b) The party requesting a modification shall have the burden of proof. Additionally, the order shall include the information required under RSA 458:19-a, VI. If the prior alimony order has ended, reinstatement shall be requested within 5 years after the end of the order.
I-a. Any modification may be retroactive as the parties may agree. If contested, an alimony modification shall not be effective prior to the date that the notice of the petition for modification was given to the other party.
II. In any modification of an existing alimony order, the earned or unearned income and social security payments of a spouse of the payor shall not be considered a source of income to the payor, unless the payor resigns from or refuses employment or is voluntarily unemployed or underemployed, in which case the income of a subsequent spouse may be imputed to the payor only to the extent that such payor could have earned income in his or her usual employment. In such actions, the court may consider the veteran's disability benefits of a spouse of the payor to the extent permitted by federal law.
III. For the purpose of modification of an existing alimony order, any income from a second job or overtime shall be presumed to be irrelevant to an alimony modification, if the party works more than a single full time position, and the second job or overtime began after the entry of the initial order.
IV. Except as provided in paragraph V, term alimony orders shall end upon the payor reaching full retirement age or actual retirement by the payor, whichever is later, unless the parties agree otherwise or the court finds that justice requires a different termination date based on special circumstances under RSA 458:19-a, IV. The payor's ability to work beyond full retirement shall not of itself be a reason to extend alimony. The payor shall provide the payee reasonable notice in advance of retirement. Sixty days' notice shall be presumed to be reasonable.
V. If justice requires, the court may extend alimony past full retirement age or actual retirement up to an amount that equalizes the parties' gross benefits under the federal Old Age, Survivors, and Disability Insurance Social Security program. The requirements of paragraph I shall not apply.
VI. Unless otherwise ordered by the court, the obligation to pay alimony ends on the death of the payee and is a charge against the estate of the payor, except to the extent that it is covered by life insurance or other security. The court may require reasonable security for the payments due the payee in the event of the payor's death prior to the completion of payments.
VII. At the request of either party by petition or motion, the court may make orders for the modification or termination of term alimony upon a finding of the payee's cohabitation as described in paragraph VIII. The requirements of paragraph I shall not apply.
VIII. The court shall find that cohabitation exists, if there is a relationship between an alimony payee and another unrelated adult resembling that of a marriage, under such circumstances that it would be unjust to make an order for alimony, to continue any existing alimony order, or to continue the amount of an existing alimony order. In making this finding, the court shall consider evidence of any of the following concerning the payee and the other person:
(a) Living together on a continual basis in a primary residence;
(b) Sharing of expenses;
(c) The economic interdependence of the couple, or economic dependence of one upon the other;
(d) Joint ownership or use of real or personal property, including financial accounts;
(e) The existence of an intimate relationship between the persons;
(f) Holding themselves out to be a couple through statements or representations made to third parties or are generally reputed to be a couple; and
(g) Any other factors that the court finds material and relevant.
IX. If an alimony order is terminated because of cohabitation or marriage, the court may reinstate the original alimony award upon finding that the payee's cohabitation has ceased or that the marriage has ended in divorce, provided that the request is made within 5 years of the effective date of the termination order. If the alimony order being reinstated had a specific termination date, reinstatement shall not extend the termination date, however, if the order specified a number of payments, the reinstatement may be for up to the number of payments remaining in the order. If the order has both a specific termination date and a number of payments, the termination date shall control. The requirements of paragraph I shall not apply.
X. (a)(1) The provisions of RSA 458:14, 458:19, 458:19-a, and 458:19-aa, as amended or inserted by 2018, 310, shall not apply to modifications of orders in cases whose initial petition for divorce or legal separation was filed prior to January 1, 2019, unless the court finds that the original order:
(A) Was based on an agreement of the parties adopting some or all of the provisions of that act; or
(B) Specified that the court was adopting some or all of the provisions of that act.
(2) Absent such a finding, modifications of these orders shall be controlled by the law in effect on the date the initial petition for divorce or legal separation was filed.
(b) Parties to any case in which the initial petition was filed prior to January 1, 2019 may agree to adopt some or all of the provisions of 2018, 310:
(1) In the original agreement or any modification of it; or
(2) In modifying any court order.
XI. An alimony order effective on or after January 1, 2019, including one based on an agreement of the parties, may be modified in accordance with RSA 458:19-a, II, without the need to demonstrate the findings in RSA 458:19-a, VI, provided that:
(a) The alimony order was issued pursuant to RSA 458:14, 458:19, 458:19-a, and 458:19-aa, as amended or inserted by 2018, 310;
(b) The alimony amount is greater than 23 percent of the difference in the parties gross incomes as defined in RSA 458:19-a, II(a); and
(c) The petition for modification is filed by July 1, 2022.

Source. 2018, 310:3, eff. Jan. 1, 2019. 2021, 113:4, 5, eff. July 9, 2021.

Section 458:19-b

    458:19-b Divorce in Another Jurisdiction. – The circuit court shall have jurisdiction to make such orders or temporary orders of alimony to a divorced wife or divorced husband, or of support to the children of divorced parents as justice shall require in cases where the decree of divorce was not granted in this jurisdiction, even though said divorce decree makes provision for alimony and support, subject to the provisions of RSA 546-B.

Source. 2011, 224:303, eff. July 1, 2011. 2018, 310:4, eff. Jan. 1, 2019.

Section 458:19-c

    458:19-c Medical Assistance Recipient; Notice of Petition for Spousal Support. –
I. If the petitioner or respondent is a recipient of medical assistance under the state Medicaid program, the petitioner shall serve the department of health and human services with a copy of any petition for spousal support filed under this chapter.
II. The department of health and human services shall have the opportunity to address the court in any proceeding under this section if the court, or the department, upon motion to the court, has concerns relative to:
(a) The impact on the recipient of any period of Medicaid ineligibility that would result from the allocation of income or assets;
(b) Whether the ward has been the victim of a crime or has been or is at risk of being abused, neglected, or exploited within the meaning of RSA 161-F:43; or
(c) The cost of the recipient's care to be paid by Medicaid as the result of the proposed allocation of income or assets.
III. No petition of spousal support shall be enforceable against the department as it relates to eligibility for medical assistance unless the petitioner provides a copy of the petition to the department at least 14 days prior to filing with the court.

Source. 2018, 310:4, eff. Jan. 1, 2019. 2022, 272:23, eff. Aug. 23, 2022; 272:24, eff. June 24, 2022.

Section 458:20

    458:20 Trust Fund. – In a proceeding under this chapter, the court may set aside a portion of the property of the parties in a separate fund or trust for the support, maintenance, education and general welfare of either party.

Source. RS 148:14. CS 157:14. GS 163:13. GL 182:13. PS 175:15. PL 287:17. RL 339:17. RSA 458:20. 1985, 175:2; 330:1. 1987, 278:3. 2004, 1:2. 2005, 273:4, eff. Oct. 1, 2005.

Section 458:21

    458:21 Security. – In all cases where alimony or an allowance shall be decreed for a spouse or children the court may require security to be given for the payment thereof.

Source. RS 148:15. CS 157:15. GS 163:14. GL 182:14. PS 175:16. PL 287:18. RL 339:18. RSA 458:21. 1985, 175:3; 330:2, eff. Aug. 13, 1985.

Section 458:22

    458:22 Repealed by 1985, 175:4, eff. Jan. 1, 1986. –

Section 458:23

    458:23 Legitimacy of Offspring. – No decree of divorce shall affect the legitimacy of a child born or begotten in lawful matrimony, unless it shall be so expressed in the decree, and children born of a marriage entered into in good faith by the parties thereto shall be regarded as legitimate children and their legitimacy shall not be affected by a decree of nullity, unless it shall be so expressed in the decree.

Source. RS 148:11. CS 157:11. GS 163:10. GL 182:10. PS 175:7. 1925, 26:1. PL 287:20. RL 339:20.

Section 458:23-a

    458:23-a Repealed by 2005, 273:20, IX, eff. Oct. 1, 2005. –

Change of Name

Section 458:24

    458:24 Decree. – In any proceeding under this chapter, except an action for legal separation, the court may, when a decree of divorce or nullity is made, restore a former name of the spouse, regardless of whether a request therefor had been included in the petition.

Source. 1905, 7:1. PL 287:21. RL 339:21. RSA 458:24. 1969, 314:1. 1971, 445:4. 1996, 32:6. 1998, 53:2. 2004, 114:2, eff. May 17, 2004.

Section 458:25

    458:25 Return of List. – The clerk of the superior court for each county, at the end of each term of court, shall return to the registrar of vital records a full and correct list of all changes of names that have been decreed hereunder by the court since the last return.

Source. 1905, 7:2. PL 287:22. RL 339:22. 1949, 253:2. 2003, 319:74, eff. July 1, 2003.

Limited Divorces

Section 458:26

    458:26 Legal Separation. –
I. In any case in which a divorce might be decreed, the superior court, on petition of either party, may decree a legal separation of the parties, which separation shall have in all respects the effect of a divorce, except that the parties shall not thereby be made free to marry any third person and except as hereinafter provided.
II. A person concerning whom a legal separation has been decreed may file a motion to amend the decree to one of divorce. The court may then consider whether justice requires that such a change be made, and, upon such consideration, the court may, in its discretion, grant such a motion.

Source. 1919, 68:1. PL 287:24. RL 339:24. RSA 458:26. 1971, 445:5. 1983, 334:1, eff. Aug. 17, 1983.

Section 458:27

    458:27 Procedure, etc. – Upon such petition for legal separation the procedure shall be the same as upon petitions for divorce, and the court shall have the same power in all matters relating to restraining orders and decrees, allowances, alimony, parental rights and responsibilities under RSA 461-A for children and division or apportionment of the property of the parties, as in cases of divorce. The name of the wife shall not be changed.

Source. 1909, 68:2. PL 287:25. RL 339:25. 2004, 114:3. 2005, 273:5, eff. Oct. 1, 2005.

Section 458:28

    458:28 Resumption of Relations. – The parties to such a petition may at any time resume marital relations, upon filing with the clerk of the superior court for the county in which the separation was decreed their written declaration of such resumption, signed, acknowledged and witnessed. Such declaration shall be entered upon the docket, under the entries relating to such petition.

Source. 1909, 68:3. PL 287:26. RL 339:26.

Section 458:29

    458:29 Effect. – Such resumption of marital relations shall terminate and annul all restraining orders, and all decrees relating to alimony or parental rights and responsibilities, but shall not affect any decree relating to the division or apportionment of property.

Source. 1909, 68:4. PL 287:27. RL 339:27. 2005, 273:6, eff. Oct. 1, 2005.

Section 458:30

    458:30 Returns. – The clerk of the superior court shall make return of all such decrees of separation and declarations of the resumption of marital relations to the registrar of vital records in the manner provided for the return of divorces.

Source. 1909, 68:5. PL 287:28. RL 339:28. 2003, 319:75, eff. July 1, 2003.

Section 458:30-a

    458:30-a Repealed by 1971, 445:7, II, eff. Aug. 29, 1971. –

Orders for Support, Etc.

Section 458:31

    458:31 Orders for Support of Spouse. – If either spouse is living apart from the other without justifiable cause or willingly absents himself or herself from the other, the superior court, upon his or her petition, or if insane by his or her guardian or next friend, may issue orders which may at the discretion of the court be ex parte and which may grant such relief as provided for in RSA 458:16. The domicile requirements of RSA 458:4, 5, and 6 shall not apply to this section; and the court may grant relief hereunder to a nonresident plaintiff if the defendant is a resident of this state.

Source. RS 149:1, 2. CS 158:1, 2. 1858, 2073:1. 1860, 2342:2. GS 164:2, 3, 17. GL 183:2, 3, 15. 1887, 24:1; 100:1; 103:1, 3. PS 176:4. 1907, 31:1. PL 287:29. RL 339:29. 1949, 240:2. RSA 458:31. 1963, 42:1. 1971, 445:6. 1999, 91:1, eff. Jan. 1, 2000.

Section 458:32

    458:32 Modification. – Upon motion and notice to the adverse party in the proceeding, or upon a new petition by either party and like procedure thereon, the court may modify or revise its orders and decrees.

Source. RS 149:1, 2. CS 158:1, 2. 1858, 2073:1. 1860, 2342:2. GS 164:2, 3, 17. GL 183:2, 3, 15. 1887, 24:1; 100:1; 103:1, 3. PS 176:4. 1907, 31:1. PL 287:30. RL 339:30.

Section 458:33

    458:33 Repealed by 1987, 278:5, II, eff. Jan. 1, 1988. –

Section 458:34

    458:34 Enforcement. – Upon such petition an attachment of either spouse's property may be made as in case of a petition for divorce; and the court may make interlocutory orders therein as in divorce cases, and its orders and decrees shall be enforced in like manner.

Source. 1887, 103:2. PS 176:5. PL 287:32. RL 339:32. 1999, 91:2. 2004, 114:2, eff. May 17, 2004.

Section 458:35

    458:35 Repealed by 2005, 273:20, X, eff. Oct. 1, 2005. –

Section 458:35-a, 458:35-b.

    458:35-a, 458:35-b. Repealed by 1982, 42:21, eff. June 29, 1982. –

Section 458:35-c

    458:35-c Repealed by 2005, 273:20, XI, eff. Oct. 1, 2005. –

Section 458:36

    458:36 Repealed by 2005, 273:20, XII, eff. Oct. 1, 2005. –

Wage Assignment

Section 458:37

    458:37 Repealed by 1985, 331:24, I, eff. Oct. 1, 1985. –

Section 458:38

    458:38 Repealed by 1985, 331:24, II, eff. Oct. 1, 1985. –

Section 458:39

    458:39 Repealed by 1985, 331:24, III, eff. Oct. 1, 1985. –

Section 458:40

    458:40 Repealed by 1985, 331:24, IV, eff. Oct. 1, 1985. –

Section 458:41

    458:41 Repealed by 1985, 331:24, V, eff. Oct. 1, 1985. –

Section 458:42

    458:42 Repealed by 1985, 331:24, VI, eff. Oct. 1, 1985. –

Section 458:43

    458:43 Repealed by 1985, 331:24, VII, eff. Oct. 1, 1985. –

Section 458:44

    458:44 Repealed by 1985, 331:24, VIII, eff. Oct. 1, 1985. –

Section 458:45

    458:45 Repealed by 1985, 331:24, IX, eff. Oct. 1, 1985. –

Section 458:46

    458:46 Repealed by 1985, 331:24, X, eff. Oct. 1, 1985. –

Section 458:47

    458:47 Repealed by 1985, 331:24, XI, eff. Oct. 1, 1985. –

Section 458:48

    458:48 Repealed by 1985, 331:24, XII, eff. Oct. 1, 1985. –

Section 458:49

    458:49 Repealed by 1985, 331:24, XIII, eff. Oct. 1, 1985. –

Section 458:50

    458:50 Repealed by 1985, 331:24, XIV, eff. Oct. 1, 1985. –

Miscellaneous Provisions

Section 458:51

    458:51 Attorneys' Fees in Contempt Cases. – In any proceeding under this chapter in which a party alleges, and the court finds, that the other party has failed without just cause to obey a prior order or decree, the court shall award reasonable costs and attorneys' fees to the prevailing party.

Source. 1985, 171:1, eff. Jan. 1, 1986.

Section 458:52

    458:52 Limitation. – Nothing in this chapter shall abrogate the common law doctrines of recrimination or condonation, or the rights of persons to enter into binding and enforceable prenuptial contracts concerning their respective property rights.

Source. 1987, 278:4, eff. Jan. 1, 1988.