Divorce: Claims & Case Law

How To Write A Divorce Claim:

  1. Identify Your Issues (instructions below).

  2. Gather Evidence (instructions below).

  3. Identify Your Relief (instructions below).

  4. Construct Your ‘Allegations’ (instructions below).

  5. Incorporate Your Claim Into A Pleading (instructions and links to free templates below)

Notice
I am not an attorney. This information is based on my personal research, observations and opinions. Laws vary from state to state. You are responsible for verifying the accuracy of any information you take from this site – and are liable for what you do with it.

Introduction

When it comes to ending your marriage, the most important thing you can do is to get control of your emotions. If you don’t, they will sabotage you. This is the hardest part.  You’re terrified. Everything feels out of your control (and to some degree, it is).  The best way to get back some of that control is to become informed. Hopefully, this article will get you on the right path.

Next, you’ll want to determine which method of ending a marriage is best for you. Divorce is not your only option. I have more on this below but, briefly, some couples find it more practical (for religious, personal or financial reasons) to remain legally married while still ending the relationship. Essentially, they prefer to change the nature of their marriage ‘contract’ to a legal separation, which is every bit as binding as a divorce decree would be. A legal separation works like a divorce, except it does not actually terminate the marriage (which permits couples to keep many of the benefits of marriage).

Annulment is an option that makes it as if the marriage never happened (from a legal standpoint). However, there must be a legal reason to justify this (most often, impotence). 

JURISDICTION (where to file): You must file your divorce, legal separation or annulment:

1) in the state where you have been a resident for a set period of time, and

2) in the “probate” or “family” division in the county courthouse.

A word to the wise: the objective of the court will be (or is supposed to be) that justice is served. This means that the final decree is going to be somewhere in the vicinity of what’s ‘fair.’ While there are many stories out there of incredible injustices being handed down in family courts, the truth is that any decision that is clearly unjust will not survive an appeal (a review of the case by a panel of three or more judges).  And, as a matter of fact, bad decisions are overturned in appeal all the time. It is unfortunate but, just as in any other industry, judges are only human. Sometimes they make mistakes and sometimes they’re just unprofessional. 

You can dramatically decrease the need for an appeal by using the proper tools and avoiding the pitfalls. Your best tool, hands down, is the law. Your biggest pitfall is your ego. 

Here is a summary of the three options I just mentioned for ending your relationship:

Divorce

Divorce

A divorce permanently and irrevocably terminates the marriage. All open issues between the husband and wife (money, debt, property, children, responsibilities moving forward, etc.) must be either agreed upon between the parties or determined by the court.

Almost all states require a certain period of residency before a person can file for divorce in that state (generally six months to a year). 

‘Grounds‘ (cause, reason) for divorce are based on the regulations in your state. All states grant ‘no-fault‘ divorces, but not all states recognize ‘fault‘ factors (this is discussed in much more detail below). A no-fault divorce will generally be granted on grounds such as ‘irretrievable breakdown of the marriage,’ ‘irreconcilable differences,’ ‘incompatibility,’ or after a period of separation  (again, depending on the state). Some popular examples of grounds for a fault divorce include adultery, cruelty, abandonment, mental illness, and criminal conviction.

The division of property and other assets is also dictated by the laws of your state. It is either equitable (divided ‘fairly’) or equal (divided 50/50).

Many states require couples to live apart for a certain amount of time before the divorce will become final. 

Legal Separation

Legal Separation

Sometimes couples have practical (financial, religious, etc.) reasons for staying married legally, while yet ending the marital relationship. Essentially, it means changing the nature of the contract from marriage to legal separation. The legal separation is every bit as binding as a marriage and/or a divorce decree would be. 

Much like a divorce, a legal separation brings about a final agreement (or decree) on the same relevant issues that would be decided in a divorce, such as child custody, child support, alimony and so forth. 

Other more specific issues, such as loan or mortgage payments and access to savings and checking accounts can also be resolved in a legal separation agreement. 

In fact, a legal separation can act just like a divorce in every way except that the marriage won’t be terminated.

Merely separating, even by mutual agreement, is not a legal separation. In fact, such a separation could later be considered ‘abandonment’ on the part of the person leaving the marital home. If the separation is not memorialized by a court order, it will be viewed as a ‘trial’ separation, and any assets or debts that arise during this period will be considered marital property. Even with a legal separation, you must check the laws in your state to ensure that the marital liability on assets and debt will stop once the legal separation goes into effect (the judge would likely not authorize such a stipulation in the separation agreement if it wasn’t permitted by law). Generally, a court will not view property accumulated by either spouse during a legal separation as marital property. 

Why would someone choose legal separation over divorce?  The reasons could be emotional or practical:

If legal separation seems more suited to your situation, simply change your pleading title from a “Complaint [or Petition, depending on your state] for Divorce” to a “Complaint/Petition for Legal Separation,” and follow the same advice in this article on divorce.
Annulment

Annulment

Annulment is another option for terminating a marriage. An annulment decree makes it as if the marriage never happened (from a legal standpoint). 

The annulment can be useful to members of religions that frown on, or refuse to acknowledge divorce – making remarriage impossible  (some religions will grant religious ‘annulments;’ however these would not be recognized by the law).

Much like a fault divorce, a legal annulment requires grounds that are recognized by the laws of your state. Possible grounds might be fraud (marriage under false pretenses), failure to consummate (impotency), refusal to have children, incest, bigamy, mental illness or capacity or coercion. The key to an annulment is that the marriage failed in some way to be legal and binding, and therefore it can be treated as if it never happened.

Annulments generally occur within a short time after the marriage, leaving few issues for the court to decide, especially in matters relating to property and assets. Yet, longer marriages could be annulled as well if they qualified. Any children born into an annulled marriage are legitimate.

If annulment seems more suited to your situation, simply change your pleading title from a “Complaint [or Petition, depending on your state] for Divorce” to a “Complaint/Petition for Annulment,” and follow the same advice in this article on divorce. 

There are two types of DIVORCE claims:

1. Fault Divorce

Depending on your state’s laws, you may be able to seek a ‘fault’ divorce, which offers the following benefits:

Fault is not mandatory in ‘fault’ states. A party in a ‘fault’ state can file a ‘no-fault’ divorce if they prefer.

2. No-Fault Divorce

All states allow ‘no fault’ divorces, which can be granted on the basis of ‘irretrievable breakdown of the marriage,’ ‘irreconcilable differences,’ ‘incompatibility‘ or a specified period of ‘separation.’

‘No-fault’ states may entertain claims reporting wrongdoing if that conduct has impacted the parties – especially their health or financial status. For example, a judge might consider evidence that a husband’s cruelty toward his wife rendered her unable to work when deciding whether to grant her alimony.

Step 1. Identify Your Issues

If you haven’t done so already, you’ll need to find out if you’re living in a ‘fault‘ or ‘no fault‘ state. Simply Google search: “divorce fault [your state].”

Remember, filing in a ‘no-fault’ state does not mean that the court will refuse to consider fault factors that have had a significant impact on you and/or will result in consequences moving forward. These can be ‘material facts‘ that have ‘relevance‘ to the ‘relief’ you’re entitled to in addition to the divorce.

To put it simply, in a ‘no-fault’ state, you generally won’t gain an advantage for wrongdoing on the part of your spouse unless you can prove that the wrongdoing: 

    1. created an additional burden (above and beyond the breakdown of the marriage);
    2. that entitles you to relief;
    3. and which was primarily caused by the wrongdoing of your spouse.

To raise a ‘fault’ issue in a ‘no-fault’ state then, you must ask yourself the following questions:

    1. Does this issue demand recourse as a logical consequence of the wrongdoing?
    2. Can I prove that it happened?
    3. Is it supported by law?

The answer to all three must be ‘yes’.

People making claims in a ‘fault’ state will also have the ‘burden of proof,’ but the relief the wrongdoing entitles them to (attorney’s fees, etc.) is often justified by their breach of the marital contract and the resulting breakdown of the marriage. This is the key difference between a ‘fault’ and ‘no-fault’ state: In a ‘fault state,’ the fault issue in and of itself entitles a claimant to an advantage, whereas a ‘no-fault’ states requires that any ‘damages’ be justified by additional harm or injury over and above the breach of the marriage. This harm or injury could be to you, your property or your future prospects. 

Simply put, the ‘fault’ state recognizes the ‘breach’ of the marriage contract as an ‘injury’ that merits consideration. The ‘no-fault’ state does not.   

Examples of justifiable ‘fault’ issues in a ‘no-fault’ state might include:

These are just a few examples that make the point: if the wrongful behavior has injured you – especially moving into the future – it stands to reason that you are entitled to compensation, even in a ‘no-fault’ state.

You can list as many grounds for your divorce as apply. However, when seeking a fault divorce, it is always good to add one of the no-fault grounds as well, just in case your fault issue is denied by the court. This way, you can ensure that, at the very least, a divorce will be granted. 

You are now ready to identify your issues.  Take your time, and keep the list handy, as you will likely add to and/or subtract from it as you go along.  

In order to assist you with this, I have listed some basic fault and no-fault grounds below, with definitions and case law to guide you.

REMINDERS

ALL STATES will grant a no-fault a divorce.

You may raise a fault issue in a ‘no-fault’ state if the wrongdoing caused more harm than simply the breakdown of the marriage.

No-Fault

No-Fault Divorce

Every state will grant a no-fault divorce.

Even so, you must state ‘grounds’ for your no-fault divorce. The most universally acceptable grounds for a no-fault divorce are:

I suppose you could word it any way you like – the general idea is that the marriage no longer works, is broken beyond repair and has essentially ended.  To achieve this by agreement, both parties would sign an affidavit to this affect. If one party is not willing to do this, the remaining party will simply have to convince the court that this is the case for him or her. The law requires that at least one party must be willing to swear that the marriage is beyond repair.

Many states require a period of separation before the no-fault divorce will be granted. This is to ensure that the couple doesn’t reconcile.

The no-fault divorce does not require either spouse to show that the other did anything wrong. They merely need to show that the couple cannot get along and/or have no desire to be together. Thus the popularity of the terms “incompatibility” and “irreconcilable differences.” 

The no-fault divorce is more convenient, less expensive and takes less of an emotional toll on the parties and their children. Neither party is required to provide evidence.

 

Fault: Abandonment

Abandonment

Abandonment (or desertion) is just what it sounds like. One party leaves for a required period of time (check your state for the time requirements). 

Leaving for employment or military reasons generally doesn’t qualify. Refusing to have sexual relations with your spouse, or withholding financial contributions (often referred to as ‘constructive abandonment‘) may qualify.

To make a claim for abandonment, you must show that your spouse voluntarily abandoned you in some way, without justification, and with no inclination toward resuming their marital obligations in the future.

The abandonment cannot have been done with your agreement, or caused by you, and it must have continued for an uninterrupted period of time.

A spouse who is forced from the residence by a restraining order that was not upheld upon hearing would not constitute abandonment. However, if the restraining order was upheld at the hearing (and therefore justified) that could be considered abandonment because it was the abusive behavior of the restrained party that caused the abandonment. Likewise, a spouse who can show that they left the household to escape violence would not be at fault for abandonment. 

Below is case law (superior court rulings that are used as guidelines by the court). As you can see, although there are some variations in opinions from state to state, the general concept is the same (state abbreviations can be found in the underlined citation beneath the quote), and that unique circumstances can alter an outcome.

Case Law on Abandonment

‘The essential elements of desertion are (1) Cessation from cohabitation for the required statutory period; (2) intent on the part of the absenting party not to resume it; (3) absence of the opposite party’s consent; and (4) absence of justification.’
Machado v. Machado, 220 S.C. 90, 66 S.E. (2d) 629
“Willful desertion consists of the breaking off of marital cohabitation and an intent to desert in the mind of the offender.”
Petachenko v. Petachenko, 232 Va. 296, 298-99, 350 S.E.2d 600, 602 (1986)
“[Desertion] cannot occur unless one spouse breaks off marital cohabitation with the intent to remain apart permanently, without the consent and against the will of the other spouse.”
Barnes v. Barnes, 16 Va. App. 98, 101, 428 S.E.2d 294, 297 (1993)
‘Willful desertion also has been found to exist when an unjustified withdrawal of the privilege of sexual intercourse is coupled with the willful breach and neglect of other marital duties, rendering “the marriage state well neigh intolerable, and impossible to be endured.”‘
Jamison v. Jamison, 3 Va. App. 644, 647, 352 S.E.2d 719, 721 (1987) (quoting Chandler v. Chandler, 132 Va. 418, 430-31, 112 S.E. 856, 860-61 (1922))
“[No desertion occurred where] [t]he facts establish[ed] that both parties had accepted that the marriage had ended, that both intended to separate at some time in the future, and that the husband acquiesced in the separation.”
Barnes v. Barnes, 16 Va. App. at 101, 428 S.E.2d 297 (1993)
‘”The essence of . . . abandonment” is the failure of one spouse to fulfill the “basic obligations springing from the marital contract” for one or more years.’
Diemer v Diemer, 8 NY2d 206, 210 [1960], quoting Mirizio v Mirizio, 242 NY 74, 81 [1926])
‘Such conduct must be unjustified and not consented to by the abandoned spouse.’
Schine v Schine, 31 NY2d 113, 119 [1972]; Haymes v Haymes, 221 AD2d 73, 76 [1996]; Hage v Hage, 112 AD2d 659 [1985])
‘A temporary departure with intent to return is not an abandonment…The abandoning party must have demonstrated a hardening of resolve not to return.’
Wallin v Wallin, 233 AD2d 699, 700 [1996]; Hage v Hage, supra at 661)
‘[O]nce the plaintiff makes out a prima facie case of abandonment, a judgment of divorce will be granted unless the defendant pleads and proves justification.’
Maryon v Maryon, 60 AD2d 623 [1977]; Pascarella v Pascarella, 210 AD2d 915, 916 [1994])
‘[Being] ordered to leave the marital residence because of misconduct does not entitle a spouse to the defense of justification.’
Keely v Keely, 28 Misc 2d 955 [1961])
‘The separation of spouses because of imprisonment for a conviction is essentially willful, albeit externally enforced, constituting desertion by the imprisoned spouse.’
Brady v Brady (98 NJ Super 600, 238 A2d 201 [1968])
“I make no doubt that if a husband brutally assaults his wife, and immediately after the attack she causes his arrest for her protection, that she may treat the separation so caused as a constructive desertion on the husband’s part, commencing from the time of the assault.”
Brady v Brady, 98 NJ Super at 602, 238 A2d at 201., (quoting Csanyi v Csanyi (93 NJ Eq 11, 13, 115 A 76, 78 [1921]))
“There is no authority requiring an abused and abandoned spouse to make overt efforts and affirmatively invite the deserter, her abuser, to come home. True, if George had made a bona fide effort to return and Veta rejected his efforts, her conduct might well have vitiated her claims of abandonment. The evidence in this case is, however, entirely to the contrary. Veta never changed the locks to the home. Veta called George and he never called her. Veta visited George’s residence; he never visited her. George never sought by word or deed to seek reconciliation or evinced any interest in returning to the former marital residence. Indeed, were we to require the victim of abuse, abandoned by the abuser, to plead for his return where he seeks no reconciliation or interest in returning to the marital residence in order for her to establish his abandonment, we would be creating a novel and inequitable precedent.”
James v James 2004 NY Slip Op 09601 [13 AD3d 583]
‘A plaintiff is not entitled to a divorce based on constructive abandonment if they consent to the nonsexual relationship.’
Domestic Relations Law § 170 [2]; Hammer v Hammer, 34 N.Y.2d 545, 546; Schine v Schine, 31 N.Y.2d 113, 119, rearg denied 31 N.Y.2d 805)
“The question of whether the mere refusal of the wife to engage in sexual relations with the husband amounts to desertion turns upon whether such refusal constitutes ‘cessation from cohabitation’…We have held that cessation from cohabitation is not established by proof of lack of intercourse alone…[and] the refusal to engage in sexual relations is insufficient alone to constitute desertion as a ground for divorce.”
Vickers v. Vickers, 176 S.E.2d 561, 255 S.C. 25 (1970) (quoting Boozer v. Boozer, 242 S.C. 292, 130 S.E. (2d) 903
‘In establishing constructive desertion, it is necessary for the complaining spouse to show that he or she was compelled to leave because of conduct on the part of the other, sufficient in itself, and independently to constitute one or more of the permitted grounds for divorce.’
Mincey v. Mincey, 224 S.C. 520, 80 S.E. (2d) 123
“Once separation and intent to desert have been established, desertion is presumed to continue until the contrary is shown…Matrimonial cohabitation implies not merely sexual relations, but rather the continuing condition of living together and carrying out the mutual responsibilities of marriage…a desertion is not ended until the performance of marital duties is resumed while living together on a continuous basis…A single act of sexual intercourse, without any intent to reconcile, does not constitute a resumption of marital cohabitation under [Virginia] Code || 20-95 and 20-91(6)…[Virginia] Code | 20-94, which provides that one spouse, aware of the other’s adultery, may condone the infidelity with a single act of sexual intercourse, does not imply that a single act of intercourse condones a desertion.”
Petachenko v. Petachenko, 232 Va. 296, 350 S.E.2d 600, 3VLR 1257 (1986) (citing Tarr v. Tarr, 184 Va. 443, 35 S.E.2d 401 (1945))
‘The equation of the requirements of continuous separation for an absolute divorce based on desertion and for a divorce from bed and board does not imply that a single act of sexual intercourse between the parties terminates their separation.’
Anderson v. Anderson, 196 Va. 26, 82 S.E.2d 562 (1954)
‘[Virginia] Code | 20-91(6) provides for a divorce from the bond of matrimony on the same ground after a period of one year from the date of the desertion or abandonment. Under | 20-95, unlike | 20-91(6), no specific period is prescribed during which the desertion must continue to entitle a party to a divorce from bed and board.’
Bailey v. Bailey, 62 Va. (21 Gratt.) 43, 47 (1871)
‘Desertion is ‘a breach of matrimonial duty,’ ‘an actual breaking off of the matrimonial cohabitation coupled with an intent to desert in the mind of the deserting party.’
Vickers v. Vickers, 176 S.E.2d 561, 255 S.C. 25 (1970) (quoting Breschel v. Breschel, 221 Va. 208, 211, 269 S.E.2d 363, 365 (1980) (| 20-91(6)); Smith v. Smith, 202 Va. 104, 109, 116 S.E.2d 110, 113 (1960) (| 20-95); Latham v. Latham, 71 Va. (30 Gratt.) 307, 322 (1878)
‘Once separation and intent to desert have been established, the desertion is presumed to continue until the contrary is shown.’
Vickers v. Vickers, 176 S.E.2d 561, 255 S.C. 25 (1970)
‘The “matrimonial cohabitation” consists of more than sexual relations. It also imports the continuing condition of living together and carrying out the mutual responsibilities of the marital relationship.’
Vickers v. Vickers, 176 S.E.2d 561, 255 S.C. 25 (1970) (referencing Colley v. Colley, 204 Va. 225, 228-29, 129 S.E.2d 630, 632 (1963))
‘A mere denial of sexual intercourse, where other marital duties are performed, does not constitute desertion.’
Goodwyn v. Goodwyn, 222 Va. 53, 55, 278 S.E.2d 813, 814 (1981); Hoback v. Hoback, 208 Va. 432, 436-37, 158 S.E.2d 113, 117 (1967); Albert v. Albert, 137 Va. 1, 3-4, 119 S.E. 61, 61 (1923); * cf. Chandler v. Chandler, 132 Va. 418, 430-31, 112 S.E. 856, 860-61 (1922); Ringgold v. Ringgold, 128 Va. 485, 495-96, 104 S.E. 836, 840 (1920)
“In order to end a desertion, the parties must resume the matrimonial cohabitation with the intent to end the desertion. Not only is resumption of sexual relations a factor, the parties also must resume the performance of marital duties while living together on a continuous basis.”
Vickers v. Vickers, 176 S.E.2d 561, 255 S.C. 25 (1970)
‘A single act of sexual intercourse does not constitute a reconciliation.’ 
Roberts v. Pace, 193 Va. 156, 67 S.E.2d 844 (1951)

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ADDITIONAL CASE LAW

(click on to read)

New York:

South Carolina:

Virginia:

Fault: Adultery

Adultery

As you may recall from the Clinton debacle, all sexual activities with any person are generally viewed as ‘sexual relations.’ However, there is a wide disparity on this issue in our courts. Here are a few examples:

Once again, the Plaintiff has the burden of proof to show that the sexual relations/activity took place. Both documented and circumstantial evidence is considered. This includes pictures, videos, texts, letters, emails, eye witness testimony, and anything else that might contribute to the claims overall. The Plaintiff must also prove that the other partner had the opportunity and inclination to commit adultery.

Also, two wrongs don’t make a right. If you commit adultery after your spouse does it, it may well cancel out your claim (the ‘recrimination‘ defense). In New Hampshire for example, the law states that “divorce from the bonds of matrimony shall be decreed in favor of the innocent party for …adultery.” New Hampshire courts later clarified that the “innocent” party is someone who is “free from guilt.” In the famous case Ross v. Ross (see below), it was further clarified that this includes all adultery, no matter when it occurs – even after separation.

Finally, if you forgive your spouse for the adultery, you can’t use it against him or her later.

Below is case law (superior court rulings that are used as guidelines by the court). As you can see, although there are some variations in opinions from state to state, the general concept is the same (state abbreviations can be found in the underlined citation beneath the quote), and that unique circumstances can alter an outcome.

Case Law on Adultery

“Generally, although the misconduct of the plaintiff occurs after the
commencement of his or her suit, it is as fully effective to bar the right to a [fault-based] divorce therein as if it had occurred previous to the commencement of the suit (quoting 24 Am. Jur. 2d Divorce and Separation § 162, at 368 (2008). This general proposition is reflected in the plain language of RSA 458:7, which states that a divorce “shall be decreed in favor of the innocent party” (quoting RSA 458:7). The statute necessarily requires that one be an “innocent party” at the time of the decree. The statute makes no exception for fault-based grounds that arise prior to the final decree, regardless of whether they arise before or after the filing of the divorce petition.”  
Ross v. Ross, 169 N.H. 299 (2016)
‘Adultery includes homosexual activities.’
Bales v. Hack, 31 Ohio App.3d 111, 31 OBR 197, 509 N.E.2d 95 (1986)
‘A homosexual relationship is equivalent to having sexual intercourse with another person.’
Owens v. Owens, 247 GA. 139, 274 S.E.2d 484 (1981)
“It is difficult to conceive of a more grievous indignity to which a person of normal psychological and sexual constitution could be exposed than the entry by his spouse upon an active and continuous course of homosexual love with another. Added to the insult of sexual disloyalty per se (which is present in ordinary adultery) is the natural revulsion arising from knowledge of the fact that the spouse’s betrayal takes the form of a perversion.”
H. v. H. 59 N.J. Super. 227, 236 [157 A.2d 721] (App.Div. 1959).
“[T]his court finds that adultery exists when one spouse rejects the other by entering into a personal intimate sexual relationship with any other person, irrespective of the specific sexual acts performed, the marital status, or the gender of the third party. It is the rejection of the spouse coupled with out-of-marriage intimacy that constitutes adultery.”
Sb v. Sjb, 609 A.2d 124, 258 N.J. Super. 151 (1992)
“A person commits adultery when he or she has sexual intercourse with a “person” other than his or her spouse (quoting Georgia Code Ann., Section 26-2009 (Ga. L. 1968, pp. 1249, 1300)). Therefore, both extramarital homosexual, as well as heterosexual, relations constitute adultery.”
Owens v. Owens, 274 S.E.2d 484, 247 GA. 139 (1981); (quoting Patin v. Patin, 371 S2d 682 (Fla. App. 1979) and Adams v. Adams, 357 S2d 881 (La. App. 1978))
“[Georgia Statute] Section 30-201 does provide that a party shall not be entitled to alimony if it is established by a preponderance of the evidence that the separation between the parties was caused by that party’s adultery, and it also provides that in alimony cases the court shall receive evidence of the factual cause of the separation and the conduct of each party toward the other.”
Owens v. Owens, 274 S.E.2d 484, 247 GA. 139 (1981)
“[N]either spouse is competent to testify to facts showing or tending to show his or the other spouse’s adultery, even if such facts would also be admissible under § 30-201 [quoting Bodrey v. Bodrey, supra; Lowry v. Lowry, supra]. To the extent that the adultery of either spouse is admissible…it must be proved through evidence other than the testimony of the parties.”
Owens v. Owens, 274 S.E.2d 484, 247 GA. 139 (1981)

Fault: Criminal Conviction

Criminal Conviction

Criminal Conviction and imprisonment of a spouse is grounds for a fault divorce. Proving that your spouse was convicted of a crime is fairly easy, as convictions are generally a matter of public record. Sometimes though, imprisonment is required to get a divorce based on the conviction. 

‘Fault’ states acknowledge the conviction itself as an issue, while ‘no-fault’ states only consider the financial impact the conviction has had (see the Maine case, Lesko v. Stanislaw below). If you’re in a no-fault state, you can use rulings in other no-fault states in preparing your own case.

Below is case law (superior court rulings that are used as guidelines by the court). As you can see, although there are some variations in opinions from state to state, the general concept is the same (state abbreviations can be found in the underlined citation beneath the quote), and that unique circumstances can alter an outcome.

Case Law on Criminal Conviction

MAINE (no-fault):

“Although courts may not consider a party’s criminal behavior to establish fault or marital misconduct, courts must consider the financial consequences of criminal conduct as relevant factors in the division of marital property.”
Lisa Lesko v. Theodore Stanislaw, ME, 2014 (quoting Hebert v. Hebert, 475 A.2d 422, 424-25 (Me. 1984))
“Here, the court methodically evaluated how Stanislaw’s criminal
conduct, convictions, and incarceration had and would continue to financially affect the household. Specifically, the court found that (1) Stanislaw’s criminal conduct resulted in the expenditure, from the marital estate, of “tens of thousands of dollars in legal fees”; (2) his conduct, particularly his victimization of some of Lesko’s patients, caused Lesko to lose income through the loss of patients in her
practice; (3) his lengthy incarceration, which will likely extend into their son’s adulthood, would cause Lesko to suffer the loss of a financially contributing co-parent; (4) his incarceration would adversely affect his current and future earning potential; and (5) the specific nature of his criminal conduct would preclude him from doing many of the jobs for which he was qualified. Importantly, the court did not consider evidence of Stanislaw’s criminal conduct
for purposes of discerning moral fault.”
Lisa Lesko v. Theodore Stanislaw, ME, 2014 
“We have repeatedly held that a division “need not be equal, but it must be fair and just considering all of the parties’ circumstances.”
Lisa Lesko v. Theodore Stanislaw, ME, 2014  quoting Leary, 2007 ME 63, ¶ 9,
926 A.2d 186

VIRGINIA (fault):

“The trial court appropriately considered husband’s criminal activities, the grounds on which the divorce was granted, as factors in its equitable distribution award.”
Damien Budnick v. Cynthia H. Budnick,VA, 2004, Record No. 1689-03-4
“Here, the record supports the findings of the trial court that husband’s criminal activities were devastating to the marriage and led to its dissolution.”
Damien Budnick v. Cynthia H. Budnick,VA, 2004, Record No. 1689-03-4
“Equitable distribution does not mean equal distribution. In Virginia, there is no presumption that marital property should be equally divided.”
Damien Budnick v. Cynthia H. Budnick,VA, 2004, Record No. 1689-03-4, (quoting Papuchis v. Papuchis, 2 Va. App. 130, 132, 341 S.E.2d 829, 830-31 (1986) and VA Code § 20-107)
“Moreover, [Virginia] Code § 20-107.3(E)(5) authorizes the trial court to consider a spouse’s negative behavior in
determining equitable distribution, and justifies an award that favors one spouse over the other,
when that behavior adversely affects the marriage.”
Damien Budnick v. Cynthia H. Budnick,VA, 2004, Record No. 1689-03-4, (quoting Smith, 18 Va. App. at 431, 444 S.E.2d at
273)
 “[Marital waste occurs] where one spouse uses marital property for his own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.”
Thomas, 40 Va. App. at 644-45, 580 S.E.2d at 505 (quoting Smith, 18 Va. App. at 430, 444 S.E.2d at 272); see also O’Loughlin, 20 Va. App. at 526, 458 S.E.2d at 325; Alphin v. Alphin, 15 Va. App. 395, 402, 424 S.E.2d 572, 576 (1992)

Fault: Cruelty

Cruelty

Proven cruelty is grounds for divorce in ‘fault’ states. Cruelty is described as the repeated infliction of physical or mental suffering which renders the marriage ‘intolerable.’ It is often required that the cruelty be deliberate and calculated. It should be provoked by the spouse.

Generally speaking, cruelty can manifest itself in the form of physical and/or verbal attacks, repeated displays of rage, screaming, violence, continuous false accusations, public humiliation, flaunting an affair and so on. It is generally intended to punish or harm the innocent party. For the conduct to be considered ‘cruelty,’ it must be ongoing and/or recurrent, and not just a single act.

Here again, a ‘fault’ state will favor the innocent spouse based on the cruelty alone. However, in a no-fault state, you will need to show damages that resulted from your spouse’s actions, over and above the breakdown of the marriage.

I could not find any case law that specifically used the term ‘cruelty’ in the no-fault states. This is likely because any relief requested would come in the form of ‘damages’ for the physical or financial harm done. 

Below is some case law (superior court rulings that are used as guidelines by the court) from the ‘fault’ states. As you can see, although there are some variations in opinions from state to state, the general concept is the same (state abbreviations can be found in the underlined citation beneath the quote), and that unique circumstances can alter an outcome.

Case Law on Cruelty

VIRGINIA (‘fault’): 

“The general rule, expressed long ago, is that ‘the cruelty that authorizes a divorce is anything that tends to bodily harm and thus renders cohabitation unsafe.’”
Patsy Anne Eakin Williams v. James Michael Williams, VA, 2003, Record No. 0197-03-3, (quoting Latham v. Latham, 71
Va. (30 Gratt.) 307, 320-21 (1878))
“Furthermore, a single act of physical abuse will not
constitute cruelty unless ‘it is so severe and atrocious as to endanger life’ or is likely to be repeated in the future.”
Patsy Anne Eakin Williams v. James Michael Williams, VA, 2003, Record No. 0197-03-3, (quoting DeMott v. DeMott, 198 Va. 22, 28, 92 S.E.2d 342, 346 (1956) and Davis v. Davis, 8 Va. App. 12, 15, 377 S.E.2d 640, 642 (1989))
“[S]evere mental cruelty, accompanied by malice or actual menace, may be sufficient under the statute…[T]here may be cases in which the husband, without violence, actual or threatened, may render the marriage state impossible to
be endured. There may be angry words, coarse and abusive language, humiliating insults, and annoyances in all the forms that malice can suggest, which may as effectually endanger life or health as personal violence, and which, therefore, would afford grounds for relief by the court.”
Patsy Anne Eakin Williams v. James Michael Williams, VA, 2003, Record No. 0197-03-3, (quoting Latham, 71 Va. (30 Gratt.) at 321)
“Mental anguish, repeated and unrelenting neglect and humiliation, may be as bad as physical wounds and bruises, and may be visited upon an unoffending spouse in such degree as to amount to cruelty even in the very strict sense in which that term ought always to be used in the law of divorce.”
Patsy Anne Eakin Williams v. James Michael Williams, VA, 2003, Record No. 0197-03-3, (quoting Ringgold v. Ringgold, 128 Va. 485, 487, 104 S.E. 836, 840 (1920))
“The exception to the general rule also must be understood and applied in light of Virginia’s unwillingness to grant a fault-based divorce for light or transient transgressions against the marital relationship.”
Patsy Anne Eakin Williams v. James Michael Williams, VA, 2003, Record No. 0197-03-3
“A fault divorce cannot be granted merely because a husband and wife are unable to live together in peace and harmony.”
Coe v. Coe, 225 Va. 616, 619, 303 S.E.2d 923, 925 (1983)
“[W]hat merely wounds the feelings without being accompanied by bodily injury . . . [such as] rudeness of language, want of civil attention . . ., or even occasional
sallies of passion that do not threaten harm, although they be high offenses against morality in the married state, does not amount to legal cruelty.”
Latham, 71 Va. (30 Gratt.) at 321
“Her allegations that husband cursed her, chose to spend some nights with his friends rather than with her, and told her that ‘he could do whatever he wanted’ in his house, show no more than mere profane language, rudeness, inattentiveness, and a dictatorial manner. The
conduct alleged does not evince the repeated verbal abuse, humiliation, and unrelenting neglect
necessary to sustain a charge of cruelty.”
Patsy Anne Eakin Williams v. James Michael Williams, VA, 2003, Record No. 0197-03-3
“Mental cruelty” was found where husband fathered an illegitimate child while married, mentally abused his wife for a “long period of time,” and “detrimentally effected [his wife’s] health and nervous system.”
Ringgold, 128 Va. at 497, 104 S.E. at 840; and Baytop v. Baytop, 199 Va. 388, 392, 100 S.E.2d 14, 18 (1957)

South Carolina (‘fault’):

Cruelty justifying a divorce is “actual personal violence, or such a course of physical treatment as endangers life, limb or health, and renders cohabitation unsafe.”
Brown v. Brown, 215 S.C. 502, 56 S.E. (2d) 330

Tennessee (‘fault’)

“[A] trial court can, as it did in this case, grant a divorce on the ground of cruel and inhuman treatment not withstanding the fact that both parties committed adultery. It should be pointed out that a successful party cannot use adultery to support cruel and inhuman treatment, for there must be substantial proof of cruel and inhuman treatment without regard to the charge of adultery. In this case, Plaintiff-appellee has established that the evidence supports a finding of cruel and inhuman treatment, without regard to the adultery charge.”
Fox v. Fox, 676 S.W.2d 956 (1984)

Fault: Financial

Financial

Financial ‘fault’ generally refers to a spouse’s unwillingness to support and/or contribute to the other financially. The law considers the expectation of sharing resources as justified when entering the marriage contract. If a spouse intentionally and/or maliciously refuses to uphold this communal monetary expectation, a person in a fault state has grounds for divorce. If the financial withholding causes more harm than simply the breakdown of the marriage (such as if it unfairly drains the innocent spouse’s resources), this may be an issue that could be raised in a ‘no-fault’ state as well. However, it will be difficult, because conduct that is condoned over a period of time is generally subject to the ‘condonation‘ defense, which states that marital misconduct that is forgiven and/or condoned cannot be used later to gain an advantage in a divorce (the condonation defense may be considered by the court in ‘fault’ divorces as well).

Below is case law (superior court rulings that are used as guidelines by the court). Again, other than financial misconduct occurring in the course of the divorce, I could not find any case law on these financial issues in the ‘no-fault’ states. As to the other states, although there are some variations in opinions from state to state, the general concept is the same (state abbreviations can be found in the underlined citation beneath the quote), and that unique circumstances can alter an outcome.

Case Law on Financial Fault

 

VIRGINIA (‘fault’):

When determining an award of child support, “a court may impute income to a party who is voluntarily unemployed or underemployed.”
Calvert v. Calvert, 18 Va. App. 781, 784, 447 S.E.2d 875, 876 (1994)

 

KANSAS (limited ‘fault’):

“[Kansas Statute] K.S.A. 60-1601(a)(2) permits fault to be an issue as a divorce ground. Commentators have stated that the current failure to perform a material marital duty or obligation is the substitute for the former fault grounds of extreme cruelty and gross neglect of duty, adultery, habitual drunkenness and conviction of a felony that results in imprisonment subsequent to marriage.”
In Re Marriage of Sommers, 792 P.2d 1005, 246 Kan. 652 (1990)
“While this Court recognizes that this is a no-fault divorce case, nonetheless, there is still some room in this cases for fault, the fault lies with the Petitioner and that matter can appropriately be taken into account by the Court in making an equitable division of property and the Court has done so.”
In Re Marriage of Sommers, 792 P.2d 1005, 246 Kan. 652 (1990)
“Certain conduct might be a fault ground and also be a circumstance properly to be considered in making a determination relative to financial matters. For illustration, let us say that because of the *658 husband’s mental abuse of the wife she is so emotionally impaired that her earning capacity is affected. Certainly, the court should consider this in its determination of a fair and equitable award. The court, in such circumstances, is not imposing a penalty for fault but is considering the circumstances of the parties as they exist and making its award based on such existing circumstances and the likely future results arising therefrom. For another example, let us say that each party is requesting the court to award the family dog to him or her. Evidence that one spouse has cruelly abused the dog in the past and only seeks it to further hurt the other spouse, who has great affection for the animal, should certainly be presented to the court and considered by the court in its division of property. Again, such evidence is not evidence of fault as a term of art, but is evidence necessary to the making of an appropriate division of property. For a final example, let us say we have a physician who because of alcoholism or drug abuse is on a downward professional spiral. The physician’s income is high now, but the circumstances show that this income level is not likely to continue. The trial court should have this information before it. It might well conclude that the physician’s future ability to pay adequate maintenance and child support is highly questionable and that it would be more provident to award a greater than usual share of the marital property to the custodial spouse. Again, such action would not be a penalty for fault, but rather would be based upon a realistic evaluation of the parties’ circumstances, future income, and needs.”
In Re Marriage of Sommers, 792 P.2d 1005, 246 Kan. 652 (1990)

 

NEW YORK (limited ‘fault’):

“Thus we conclude that, as a general rule, the marital fault of a party is not a relevant consideration under the Equitable Distribution Law in distributing marital property upon the dissolution of a marriage. This is not to deny, however, that there will be cases in which marital fault, by virtue of its extraordinary nature, becomes relevant and should be considered. But such occasions, we would stress, will be very rare and will require proof of marital fault substantially greater than that required to establish a bare prima facie case for matrimonial relief. They will involve situations in which the marital misconduct is so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship — misconduct that “shocks the conscience” of the court thereby compelling it to invoke its equitable power to do justice between the parties. Thus, for example, in D’Arc v D’Arc (164 NJ Super 226, mod on other grounds 175 NJ Super 598, cert den 451 U.S. 971), the New Jersey Superior Court considered the fact that during the pendency of the divorce proceedings the husband had offered $50,000 for the murder of his wife, even though it had previously been held by the Supreme Court of New Jersey that fault was not to be relied upon (see Chalmers v Chalmers, 65 NJ 186). As the D’Arc court stated, “where a spouse has committed an act that is so evil and outrageous that it must shock the conscience of everyone, it is inconceivable that this court should not consider his conduct when distributing the marital assets equitably” (164 NJ Super 226, 241, supra) [emphasis added] (id at 292).”
Alice M. v Terrance T. 2015 NY Slip Op 51913(U) (2015)
“The wife has expended time (nine years), rendered services (homemaker, companion), contributed funds (principal fund raiser, living expenses, tuition, books, etc.), and, at first blush, it seems grossly unfair that she should not, now, as they stand on the threshold of achieving their common goal, fully share in the material success they both have worked so hard to achieve…it is almost irresistible to conclude that the wife has been woefully abused in that the husband, through the long years of college and medical school, accepted her help, financial and otherwise, and then, shortly after receiving his medical license, walked out on her and sued for divorce.” Yet, the court ultimately concluded that it would be inappropriate to “apply our own notions of equity in order to right this perceived wrong,” and that “marital fault, except in the most egregious case, is not a relevant consideration in the equitable distribution of marital property.”
O’Brien v. O’Brien, 106 AD2d 223, 485 N.Y.S.2d 548, aff’d as modified, 66 NY2d 576, 489 N.E.2d 712 [2d Dept 1985]
“[W]ith respect to the concept of egregious behavior, marital fault may also be understood as a voluntary act in the context of the marriage that causes some social harm. The difference between ordinary marital fault and egregious marital fault, however, concerns the relative importance of the particular social value involved. The more highly the preservation of an interest is valued by society, the more likely it is that the offensive conduct in question will be deemed egregious. A judge, therefore, in determining whether particular conduct amounts to egregious marital fault, must decide whether the social interest compromised by the offending spouse’s conduct is so fundamental that the court is compelled to punish the offending spouse by affecting the equitable distribution of the marital assets.”
Alice M. v Terrance T. 2015 NY Slip Op 51913(U) (2015)

 

Fault: Impotency

Impotency

Sexual intimacy is a reasonable and legally recognized expectation of marriage.

“Impotency” is the inability (either physically or psychologically) to have sex. 

From a legal standpoint, impotence does not include the refusal to have sex, which is intentional. Impotency exclusively refers to a person’s ability to perform. A spouse that withholds sex does not fall under this category. The intentional withholding of sex, depending on the circumstances, might fall under abandonment (if its combined with the refusal to perform other marital obligations) or sexual incompatibility.  

Even though the person with impotency is not acting intentionally, a ‘fault’ divorce or annulment (if the impotency began immediately upon marriage) can be granted on this basis.

As with all legal claims, the burden of proof falls on the Plaintiff (the person making the claim). Proving impotency can be tricky if the nonperforming spouse refuses to undergo medical testing (although this can be ordered by the court).

The curability of the impotency may also be considered by the court when determining whether or not an annulment/divorce will be granted on the grounds of impotency. In most cases, the impotency must be incurable.

I could not find any case law (opinions on appealed cases) on divorce proceedings that were based on impotency. The only cases I could find involved impotency from the onset of the marriage, which were seeking an annulment. I’m certain this issue of impotency arises later in many marriages, but I just can’t find any case law relating to it. Perhaps the courts are hesitant to recognize the impotency as a ‘fault’ issue in those cases. I admit I do not know enough about it to offer a 

Below is some case law (superior court rulings that are used as guidelines by the court). Again, each of these cases involves annulments that challenge the validity of the marriage based on one party’s failure to ‘consummate’ the marriage through sexual relations. 

As you can see, although there are some variations in opinions from state to state, the general concept is the same (state abbreviations can be found in the underlined citation beneath the quote), and that unique circumstances can alter an outcome.

Case Law on Impotency

 

NEW JERSEY (‘fault’):

“Impotence of either spouse in relation to the other may be either physical or psychical in origin…The condition may be curable, incurable, accidental or temporary. Where psychological in origin the condition may be quoad hanc, i. e., as to the spouse only.”
Godfrey v. Shatwell, 38 N.J.Super. 501, 119 A.2d 482 (1955)

 

PENNSYLVANIA (‘fault’):

“In Wilson v. Wilson, 126 Pa.Super. 423, 191 A. 666 (1937), this court held that impotence as a cause for divorce means the incapacity for sexual intercourse. We agree with the lower court that this definition includes ‘incapacity not only resulting from physical malfunction or impairment of the sexual organs, but also incapacity based upon emotional or psychological factors.’” 
Manbeck v. Manbeck, 489 A.2d 748, 339 PA Superior Ct. 493 (1985)

 

Fault: Mental Illness

Mental Illness

A divorce on the grounds of mental illness must involve a permanent, incurable psychological disorder that makes marriage intolerable. From the case law (rulings on appeal), it appears that we are talking about serious mental illness here, often involving hospitalization, and not simply personality disorders. 

Another thing I noticed about the mental illness divorce cases is that the innocent party often ends up having to financially support the sick partner, long after the divorce.  This is because most persons who meet the criteria for a divorce on the grounds of mental illness are completely unable to hold down a job. With a no-fault divorce available in every state, one might wonder why someone would use these grounds to extricate themselves from a marriage. However, where children are involved, it may be necessary to raise these grounds in order to protect them from the sick parent.

Here again, the burden of proof is on the Plaintiff (the person making the claim). This would involve a diagnosis. A court may order a psychological exam and diagnosis in cases where a spouse refuses to submit to one.

For obvious reasons, a divorce based on mental illness can be difficult and, in many ways, unfair to the innocent party. 

Below is some case law (superior court rulings that are used as guidelines by the court). Mental illness cases are so complex that a simple quote won’t suffice. Therefore, I’m providing links to the final rulings that summarize the cases, which it is well worth your time to read through if you are dealing with a spouse with mental illness.

I’ve tried to include a variety of different issues arising from mental illness in the case law below. The ruling doesn’t have to be in your state to be helpful to you in deciding how to manage your own case, because even though the law varies from state to state, these variations are generally subtle.

Case Law on Mental Illness

 

CONNECTICUT: 

Luttrell v. Luttrell, 184 Conn. 307 (1981)

 

GEORGIA:

Carr v. Carr, 2014

 

MASSACHUSETTS:

Joann Marie Caccia vs. Richjard Gerald Caccia, 40 Mass. App. Ct. 376 (1996)

 

NEW JERSEY:

Deborah Speer v. Stephen H. Speer

 

PENNSYLVANIA:

Lyall v. Lyall, 240 Pa. Superior Ct. 649 (1976)

 

SOUTH CAROLINA:

Rutherford v. Rutherford, 414 S.E.2d 157, 307 S.C. 199 (1992)

Fault: Religious Reasons

Religious Reasons

Differing religious beliefs have been a key factor in many of the wars throughout history – and to this day. It is no wonder, then, that it would be an issue in marriage.

But it can get tricky. As a general rule, activity that is forgiven, condoned or accepted can be rejected as a grounds for divorce (under the condonation defense). You can still get the divorce, you just can’t get it on religious ‘fault’  grounds. In other words, if your partner practiced that religion when you married him or her, you can’t now raise it as a ‘fault’ issue that cause the breakdown of the marriage. 

However, if your partner joined a religious group or took up religion after the marriage,    and it led to the destruction of the marriage, then you can offer this as grounds for divorce.

Below is some case law (superior court rulings that are used as guidelines by the court). As you can see, although there are some variations in opinions from state to state, the general concept is the same (state abbreviations can be found in the underlined citation beneath the quote). Also, there are always unique circumstances that can alter the outcome.

Case Law on Religious Fault

Fault: Sexual Incompatability

Sexual Incompatability

Sexual incompatibility may be another cause for divorce.[9] In a number of states, another intimacy related matter—impotency—can also function as grounds for divorce.[9] If a spouse is unable to perform the act of sex with his or her companion, the other member of the couple is within his or her rights to file for divorce.[9] To serve as valid grounds, the partner’s inability to perform intercourse must have been present at the outset of the marriage, and had to have lasted through the start of the divorce proceedings; i.e. the couple must not have consummated the relationship in order to use impotency as a justification for divorce.[9]

Below is case law (superior court rulings that are used as guidelines by the court). As you can see, although there are some variations in opinions from state to state, the general concept is the same (state abbreviations can be found in the underlined citation beneath the quote), and that unique circumstances can alter an outcome.

Case Law on Sexual Incompatibility

 

 

 

Fault: Substance Abuse

Substance Abuse

Another of the many issues that could lead to a couple’s divorce is substance abuse.[9] There is a noted correlation between excessive alcohol consumption and/or narcotic misuse and domestic violence.[33] Since extreme mistreatment of one’s spouse is a serious concern, the law considers it legitimate grounds for divorce; the same holds true in cases where a member of the couple feels uncomfortable with the other’s overuse of controlled substances.[34]fore-valid marriage.[9]

Below is case law (superior court rulings that are used as guidelines by the court). As you can see, although there are some variations in opinions from state to state, the general concept is the same (state abbreviations can be found in the underlined citation beneath the quote), and that unique circumstances can alter an outcome.

Case Law on Substance Abuse

Scully v. Scully

Annotate this Case  

122 N.J. Super. 94 (1972)

299 A.2d 93

Fault: Other

Other Grounds

Other grounds for divorce may include alcohol or substance abuse and impotency, infertility or homosexuality (for heterosexual married couples) of the other party that was not discussed before the union. Strictly speaking, some jurisdictions may interpret the failure to disclose such conditions in advance as actual or constructive fraud that renders the marriage void, or at least voidable unless and until accepted by the other party once s/he learns of the condition(s), and thus serves as grounds for an annulment rather than for dissolution of a theretofore-valid marriage.[9]

2. Gather Evidence

Courts require evidence. Accepted forms of evidence in divorce cases are testimony from witnesses with first-hand knowledge and documentation of the event(s). 

It is never more true than in divorce that ‘it takes two to tango.’ This is the premise for most of the defenses a defendant might raise to weaken a claim against them.  Both plaintiffs and defendants should gather evidence. Although the Plaintiff has the ‘burden of proof,’ a defendant who can prove even one lie can undermine the plaintiff’s entire case. This is I’m an advocate of the truth. Although you rarely see a perjury claim come out of a divorce litigation, intentional deceit will adversely affect the outcome of your case.

One lie can undermine a plaintiff’s entire case.

DEFENDANTS:  Potential defenses for fault claims include:

Any of these defenses cancel out a fault claim (ie., under recrimination, a plaintiff cannot make a claim for adultery if they, too, have had an extramarital affair during the marriage, even if it occurred much later and/or during the separation). Plaintiff’s who file a claim under one of the circumstances listed above could not only lose any advantage they might’ve had with the court, but they could also be sanctioned (fined) or required to pay attorneys fees for the defendant. 

This is perhaps why no-fault divorces are so common, because no evidence is required, it is much less stressful and its not nearly as expensive to litigate.  

The decision over what type of claim to file should not be based on your personal feelings about your soon-to-be former spouse. Your claim should be based on: 

  1. truthful allegations that lead to the conclusion that the relief you’re seeking is logical and fair;
  2. which can be proven; and
  3. are supported by law.

Acceptable forms of evidence include pictures, videos, letters, emails, texts, receipts and witnesses are all ‘admissible’ forms of evidence. If you’re alleging adultery, many states (such as NH) will require the identity of the person(s) involved. Some states do not consider the testimony of either spouse as ‘evidence,’ in and of itself. All claims and defenses must be backed up by evidence. However, in a case where a plaintiff has provided no evidence, a denial from a defendant is sufficient, because the plaintiff has the ‘burden of proof.’ No proof on either side equals a loss to the plaintiff.

The level of evidence required to meet the burden of proof in family court is ‘a preponderance of the evidence.’  ‘Preponderance’ is defined as “the quality or fact of being greater in number, quantity, or importance.” Under the preponderance of the evidence requirement therefore, the burden is met when the person with the burden (generally, the person making the claim) convinces the court or jury that the likelihood that the claim is true is greater than 50%. To prove a case by a preponderance of the evidence then, your evidence taken all together as a whole must support your claim to the point where it is more probable than not that it actually happened.

Include in your evidence everything that supports your claim and nothing that does not.

You do not need to provide your evidence when filing your initial complaint. But you should have it ready for when you need it. In the claim itself, you will be making allegations (statements, claims, assertions) to support your claim. There is an implied expectation that you can back these up. Be sure you can.

You are now ready to begin gathering your evidence.

3. Identify Your Relief

Relief is whatever you’re asking the Court to ‘grant’ you.

Now that you have established the ’cause’ of your divorce, be it fault or no-fault, you are primed to prepare your claim(s) for a divorce and any other relief you may be entitled to, such as property division, child custody and so forth.

Unless it has already been established in a pre-nuptual contract, the court will determine your ‘share’ of the marital assets, plus any future entitlements you may have (child support, alimony, tort, etc.). Again, the law rules first, so it is wise to know the laws in your state.

I have provided a drop down menu so that you only have to view the issues/claims that apply in your case. Each section includes state laws at the bottom (this is a work in progress so forgive me if your state is not covered yet – or better yet, email me and I’ll try to make it a priority to get more information posted on your state).

Divorce Companion Claims

Child Custody

Child Custody

Child custody is going to come down to what’s best for the child. Period. More and more, this involves custody being shared between the mother and father, to the degree that it is possible. This is what is viewed as ‘best’ for the child.

In the past, ‘full custody’ seemed like a right of passage for the mother, because it protected her need for financial assistance in maintaining the cost of living. This is not entirely the mother’s fault. Until very recently, our society viewed men as the primary breadwinners of the family, and the pay disparity between the sexes lives on to this day (although it is slowly getting better). These circumstances made it so that the mother often needed the children (or to be more accurate, the child support) in order to maintain a home for herself. In cases where the father makes enough money to maintain two homes, this isn’t so bad. But for the father who was struggling to keep the family home above water, this often meant living in his parent’s basement while the wife continues to live in comfort. 

As society changes its views on working mothers, the courts are changing their views on mother’s rights. There is no denying that ‘child support’ is the responsibility of the parents. Both parents. More and more, the financial support for a child is being configured as a percentage that the higher income parent will pay, which is based on the incomes of both parties.  This way, children can spend more time with their fathers. This is the shift that has taken place in the last twenty years or so.

This is how it is. Accepting this will save you a lot of time, energy, stress and money. Even if you’re representing yourself, legal fees for your spouse also deplete the marital assets. In the end, the court is going to rule according to the consensus.

Courts are now encouraging mutual agreements that favor shared parental custody arrangements.

There are two kinds of custody:

  1. Legal custody: this involves control over decisions relating to healthcare, religion, education and other aspects of the child’s well-being. More and more states are moving toward a preference in joint legal custody to both parents.
  2. Physical custody: this determines where the child will reside the bulk of the time. Courts are also encouraging shared residential custody. However, since the logistics of each parent getting an equal share of time with the children is often impractical, one parent (still favoring the mother) will get the primary residence ruling.

What this comes down to is this:

Courts prefer a reduced amount of child support that is based on how much time the residential parent spends with the children.

Courts are treating parents equally.

Courts are favoring parents who show a willingness to work together, make decisions together and share custody. More and more, Courts are favoring the parent who will provide better access to the children.

A Word of Warning

Formerly successful manipulations of the justice system (trumped up charges of abuse and/or restraining orders without merit) are no longer successful. In fact, if the innocent party can prove the charges are false, the person making the false charges will not only lose all credibility with the Court, but they will be the ones who are seen as abusive. We are all now aware that attempts to alienate from and/or degrade a parent to a child is psychologically damaging to the child. To do it in spite of the damage it is causing the child could be compared to an animal eating its young. It is a clear indication that the person is willing to harm their own child just to gain an advantage. Don’t do it. And if you have even considered making ‘suggestions’ of this kind to your child in order to get them to make the false claim of abuse, you are a very very sick, who should be limited to ‘supervised’ visitation with that child, so that the harm you do to them will be minimized. These are desperate measures, taken by extremely weak people who are terrified that they cannot take care of themselves (remember, they only want full custody to get more money from the partner). A person who can’t take care of themselves can’t take care of a child. This is a person who, themselves, need help. If you’re this person, seek the help. 

This is not my opinion. This is how the courts, mediators and child psychologists view the issue of child custody. To win, you have to play by the rules. If you ignore the rules, you’re going to lose – perhaps more than what you fear losing.

My advice: Use this challenging situation as an opportunity to become a better person.

List Your Issues

It’s time to list your issues on this matter of custody. What claims do you believe you have on your child(ren)? What do you believe would be best for them? Most importantly:

Some issues/claims might include:

Those are just a few popular examples. Any reasonable and lawful issue is worth raising. 

Since this is such an emotional issue for people, I recommend discussing your list with family and friends. Strangely enough, be very careful when reviewing your issues with a lawyer – unless that lawyer is a trusted friend. Many lawyers will play on these highly emotional issues to get your case. But beware. Lawyer rarely achieve a result that is promised before they have heard both sides of the story.  (see my article on how to find a good lawyer here: ) I’m not suggesting you don’t get a lawyer. I’m just suggesting that you don’t get a lawyer who is too quick to make you feel good. 

Child Support

Child Support

The amount of child support paid is based on factors like the balance of custody, the income of both spouses and the laws of your state. These factors generally dictate the amount, which is often calculated from a predetermined scale.  Here are some basic facts to get you started: 

You are now ready to list your claims for support. Keep in mind that all reasonable and lawful requests are worth putting forward. 

Part 1. Start by identifying the following information:

  1. What level of custody are requesting (if you have not yet listed your custody claims you will need to visit that section first)? 
  2. What is your gross yearly income?
  3. What is your spouse’s gross yearly income?

Part 2. Compute the child support:

I’ve added links to a few of the online child support calculators below. I have found these to be extremely inconsistent with the actual state laws.

A more reliable way to compute child support would be to run a Google search as follows:“[your state] computing child support” To ensure accuracy, only follow links that lead to official state websites.  Your state’s official page on child support will likely give you the key information you need to calculate the child support for your case. Look for the following information to determine which factors will be considered, such as:

For example, some states, such as NH, don’t take into consideration the amount of time spent with the children.   If you cannot reach a number on your own, simply describe your claim for child support, and request that the Court grant you a ‘fair and equitable amount of child support according to law.’ At the bottom of this section, I will be adding links to the various state statutes on computing child support. You may want to check there before doing a google search.

Part 3: Special and extraordinary expenses include the following:

Example: John and Helen have three children. When they separated, they agreed that two of the children would live with John most of the time, and the other child would live with Helen most of the time. Using the Child Support Online Lookup, they find out how much child support each of themould have to pay if they were the paying parent.

John enters his annual salary, and enters 1 child (the child not living with him).

Helen enters her salary and 2 children (the number of children not living with her).

The calculator says John should pay Helen $400 per month for the child in her care, and Helen should pay John $250 per month for the children in his care. But because John has to pay more, he is the paying parent.

To get the actual amount of child support he should pay Helen, they split the difference in the two amounts: $400 – $250 = $150. John has to pay Helen $150 per month in child support.

Parents who have separated also have to calculate other types of expenses, which are known as special and extraordinary expenses.

For help with your situation, contact Family Justice Services or the Support Enforcement Program. Their services are free. Phone to make an appointment.

LINKS TO STATE STATUTES

(simply click on your state)

Alaska

Connecticut

Florida

Georgia

Illinois

Kentucky

Maine

Maryland

Massachusetts

Minnesota

New Hampshire

New Jersey

New York

North Carolina

North Dakota

Ohio

Oregon

Pennsylvania

Rhode Island

South Carolina

South Dakota

Vermont

Virginia

Washington

 

Property Division

Property Division

COMMUNITY PROPERTY… general… unless seeking a claim for more than simple fair share due to fault or other issue (fair verses equity)Which states are not community property?Most states are not and are considered equitable distribution states where property is distributed fairly verses equally. There are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.Community property is everything a husband and wife own together. This typically includes all money earned, debts incurred and property acquired during the marriage. Community property states classify the following as a married couple’s joint property: … Any income received by either spouse during the marriage.

B. Are you in a ‘non-community property‘ state meaning the division of property and other assets will come down to what’s equitable and fair, or are you in a ‘community property‘ state, which means everything is split 50/50? I can answer this one for you here. There are 9 community property (50/50) states. They are Arizona, California, Idaho, Louisiana, Nevada, New mexico, Texas, Washington and Wisconsin. If your state wasn’t mentioned, you are in a r property will be distributed ‘fairly’ verses ‘equally.’

Community Property (50/50) States:

Non-community Property’ (based on what’s fair) states: 

If yours is a non-community property state, your property will be distributed ‘fairly.’ 

If yours is a community property state, your property will be distributed ‘equally.’

Again, wrongdoing and/or misconduct that has had a significant impact on the innocent party and/or the marital estate is always worth bringing up in a court of law. 

 is always filing in a ‘no fault’ state does not mean that the court will refuse to consider fault factors that have a direct effect on the issues at hand. These are considered ‘material facts‘ that have a direct correlation to the ‘relief’ you’re requesting from the court.

Alimony

Alimony

Case Law on Alimony

Jpd v. Jmd

Annotate this Case  

413 A.2d 1233 (1980)

J. P. D., Respondent Below, Appellant, v. J. M. D., Petitioner Below, Appellee.

Supreme Court of Delaware.

Alimony Statutes by State

Georgia

Emergency Relief

Emergency Relief

 

Tort / Ongoing Injury

Tort / Ongoing Injury

Marital Tort

What exactly is a marital tort? Some kinds of marital tort are easy to identify, usually due to their egregious nature, others are less well known. Examples can include:

Defining Marital Torts

“Tort” is a broad legal term meaning an accidental or intentional wrongful act that injures another person. Civil law suits are often based on torts. Most people are familiar with tort actions based on personal injury or interference with property, but a vast number of other actions can also be torts. A few examples include fraud, invasion of privacy, false imprisonment, malicious prosecution, defamation, and breach of fiduciary duty. Many torts are also crimes, but a victim seeking monetary compensation (also known as “damages”) must bring a civil lawsuit separate from any criminal action. Recovery in a successful tort case may include compensatory damages for things like pain and suffering, emotional distress, medical expenses, and loss of earnings and earning capacity. For particularly outrageous tortious conduct, punitive damages may be available.

In the simplest terms, a “marital tort” is any tort inflicted by one spouse upon the other during marriage.

There are a few torts that relate specifically to marriage, such as fraudulent inducement to marry or dissipation of marital assets. There are other torts that are not specific to marriage, but frequently arise within the context of a marital relationship. Unfortunately, infliction of personal injury is one of these, as domestic violence is shockingly prevalent in our society.

Torts are ordinarily subject to “statutes of limitation.” This means that claims for tortious injury must be brought within certain time limits, depending on the nature of the injury. For example, a victim of a physical assault ordinarily has two years following the assault to bring a civil claim. Under certain circumstances, however, a statute of limitations can be “tolled” (stopped from running) for varying periods of time. New Jersey recognizes a tort called “battered woman’s syndrome” that allows victims caught up in a cycle of domestic violence to be compensated for abuse that occurs on a continuing basis, without each separate instance of abuse being subject to a statute of limitations. Proving battered women’s syndrome requires expert testimony in court.

In years past, courts did not recognize marital torts at all. A wife’s legal identify was considered to merge with her husband’s upon marriage, preventing either spouse from suing the other. Over time, as women gained civil rights, this fiction of a unified marital identity began to dissolve. In New Jersey, courts gradually abrogated interspousal tort immunity in a series of cases culminating with the 1979 Supreme Court case of Tevis v. Tevis. Marital tort claims are sometimes called “Tevis claims.”

Marital Tort

Generally, the marital tort is at least good for consequential damages (as described above in the injury section), even in a ‘no fault’ state. However, if your in a ‘fault’ state, you could be entitled to other compensatory damages as well. Again, I recommend you do a preliminary review of the divorce laws in your state.

Compensatory damages are for a specific amount of money intended to compensate the innocent party for losses that occurred from the other person’s conduct. There are two types of compensatory damages: 

If you have an ongoing issue you have to deal with because of wrongdoing or negligence on the part of your spouse, you’ll want to make a list of the injuries (harm, damage, loss) you have suffered and/or are continuing to suffer as a result of your spouse’s conduct. This injury could apply to your personal or financial well-being.

Beside each injury, list ALL factors that might have contributed to those injuries, including those that have nothing to do with your spouse.

‘Injury’ (also called ‘damage,’ ‘loss’ or ‘harm’) refers to consequences that occur to a person, property or reputation because of the actions of another. ‘Damages’ (plural) refers to the ‘relief’ that the ‘injured’ (or damaged) person is legally entitled to. The ‘injury’ could be caused by an act or a failure to act.  It can be intentional or unintentional.

Before you even get started: ’emotional distress’ is not generally considered a valid ‘injury’ in divorce cases, unless the cause of it is substantial and documented abuse. EVERYONE suffers emotional distress in the breakdown of a marriage, even the alleged ‘bad’ guy. Everybody suffers from rejection and failure. If you truly can’t think of any mistakes you made to cause the breakdown of your marriage, YOU were probably the problem. In any case, I don’t recommend bringing unnecessary drama into the courtroom – not just because it will alienate the judge but, perhaps more importantly, because it will solidify your alleged victim-hood in your own mind. If you’re issue isn’t recognized by the law, the court won’t recognize it either. Which will make your victim-hood worse. In other words, you’ll be programming your brain to issue even more unrealistic responses to the personal challenges you face in the future (you’ll be unhappy).

This is a legal article, not a therapy session. However, you should be aware of this tendency in yourself if you decide to hire a lawyer. In particular, if a potential lawyer feeds your sense of victim-hood without providing you a clear, legal basis for how he or she intends to pursue damages on your behalf – RUN out of their office. Trust me, many who have come before you could tell you how expensive those comforting words turned out to be. But the worst part is when you ultimately lose the frivolous claims, especially if you question your lawyer about it. Beware the bitter deja vu when your lawyer looks at you with the same expression your former spouse used to have when you make these accusations at them. Only this time, you’d have paid the person a great deal of money for essentially the same feeling (before hiring an attorney you might want to check out my article entitled… LAWYER ARTICLE LINK)

That’s not to say a legitimate injury didn’t occur. I just want you to make sure its a legitimate injury (meaning the LAW recognizes it as such).   

With every injury you list, you will need to start collecting all of the evidence you have to support it. This includes everything from documentation of the injury/damage/loss, to texts of you and/or someone else discussing the injury, loss or suffering. Keep your list and your evidence handy in a labeled folder.

Generally, an injury that entitles a person to damages occurs when the actions of the other person are

  1. unlawful, negligent and/or generally recognized to be ‘wrong,’ and/or
  2. adversely affect another. 

Here are a few examples of possible injuries that might apply – and which may entitle a plaintiff to ‘consequential’ or other damages, even in ‘no fault’ states (these are just a few to give you an idea of what constitutes a legal ‘injury’):

Sample Divorce ‘Injuries’

  1. A spouse convicted of a criminal offense (even if its not related to the marriage) might have caused a drain on the marital finances/assets from the costs of defending the charge in court, the loss of income during any incarceration, discrimination/loss of job for the partner and/or injuries to the family.
  2. A spouse with a gambling, drug or other addiction issue might have also resulted in a drain on the marital finances and/or assets, or resulted in some other injury.
  3. A spouse’s actions that result in some kind of physical injury to their partner requiring future care might entitle them to a ‘tort’ claim (a tort is a ‘wrongful’ act, made intentionally or out of negligence, that arises out of a duty that is breached, and evolves into causation and injury). An example of this might be an STD that was contracted during an adulterous affair and then passed on to the innocent spouse. While a ‘no fault’ state would not consider the adultery by itself, it would likely consider health issues arising out of the adultery if they have an ongoing impact on the innocent party.  

Monetary Damages

MONETARY DAMAGES – a cash award by a court to a plaintiff to compensate him or her for loss, damage or injury sustained as a result of the defendant’s misconduct.

Monetary damages are compensation paid a person who “has suffered loss, detriment, or injury to his person, property, or rights through the unlawful act or negligenceof another.” These damages may either be compensatory, which are given to make up for the loss, or punitive, which are given to punish the defendant for his or her action. Punitive damages are sometimes called exemplary.

Sometimes, nominal damages (a symbolic payment of $1) are awarded in vindication where no real loss can be demonstrated. Generally, punitive damages are awarded only when compensatory or actual damages have been sustained.

In the calculation of damages, many factors come into play, including economic loss, injury, and pain and suffering. Pain and suffering is a term big enough to include not only physical discomfort and bodily distress but also emotional trauma and mental anguish.

Within the term damages are categories, but the most common is called actual damages, which are “real, substantial and just.”

In divorce actions, a lawyer is not permitted to graduate his fee based on the size of the property settlement. Success fees in divorce actions are considered unethical.

Alimony, maintenance and child support are not considered damages.

Monetary damages are not normally part of divorce actions, but marital torts, which are now more common, permit spouses to sue each other for damages.

A NOTE ABOUT EMOTIONAL DISTRESS

Everybody suffers emotional distress in a divorce. Everybody.

The extent you are likely to recover for emotional distress depends on the severity of the distress caused and the kind of damage suffered. Before you hire an …

 

Mitigation refers to the principle that a party who has suffered loss (from a breach of contract) must take reasonable action to minimize the amount of the loss suffered.

Let’s say you have a five year employment contract that is terminated after one year. While you are entitled to ‘damages’ for any loss of income under the contract, you can’t just sue for the remaining four years. will not be entitled to the additional four years’ salary under the contract unless you actually try to … FINISH

FROM WEBSITES:

Mitigation of damages is a contract law concept that requires that a victim in a contract dispute to minimize the damages that result from a breach of the contract. This means that the victim is legally obligated to act in a manner that will mitigate both the effects of the breach and their own personal losses and even if the victim who suffers personal injury through no fault of his or her own has an obligation to take reasonable steps to avoid further loss, and to minimize the consequences of the injury.

If a victim does not mitigate damages, the court may refuse to award any exorbitant damages that could have been reasonably avoided by the victim. The court will evaluate the victim’s actions following the breach of contract to determine if they took steps that a reasonable person in similar circumstances would have taken to minimize their losses. However, mitigation of damages does not require the victim to take extreme steps or make substantial sacrifices in order to avoid or minimize loss.

What Does Duty to Mitigate Mean?

Same as above, when a person suffers damages as a result of a breach of contract, he or she has the legal obligation to minimize the effects and losses resulting from the injury. The duty to mitigate works to deny recovery of any part of damages that could have been reasonably avoided.

“Reasonably avoided” has no specific definition, but generally means what a reasonable person would do under similar circumstances. If a person has a duty to mitigate damages and they do not do it, the courts will usually reduce their damages by the amount that they could have  mitigated.

How Do Courts Calculate Damages in a Breach of Contract Case?

The court will first look at the contract itself. The court will determine what was promised and by whom. The court will evaluate the terms of the contract. The court will also decide if a breach occurred and if so, when. If no breach occurred, the plaintiff is not entitled to damages.

The court will then estimate damages by looking at whether the contract was partially fulfilled. The court will also examine the plaintiff’s actions to determine if the plaintiff was partially responsible for the damages. If so, the damage award may be reduced.

What are Examples of Mitigation of Damages?

To better explain mitigation of damages, here are some examples in different areas of law:

  1. Contract Law: A homeowner contracts with a plumbing company to fix a bathroom leak for a set price. The plumbing company begins to fix the leak but then finds a less difficult and more profitable job. The plumbing company abandons the project, therefore breaching the contract. The homeowner never hires another plumber and instead allows the leak to worsen. The house eventually develops a severe mold infestation and warped flooring. The plumbing company will not be liable for the mold infestation and warped flooring because the homeowner had a duty to mitigate damages by hiring a new company.
  2. Landlord/Tenant: A tenant needs to move for a new job and therefore breaks his lease early. He still has six months left on his lease. The landlord lets the apartment sit vacant for six months, then sues the tenant in landlord tenant court for six months of rent plus late fees and other penalty fees. The landlord will not be able to get this entire amount because the landlord had a duty to mitigate by finding a replacement tenant.
  3. Employment: An employee signs an employment contract with a company to work as a consultant in a non-at-will state. Due to the recession, the employer wrongfully terminates the contract after only one year. The employee then does not bother to find a new job and instead sues for lost wages. The employee will not be able to get the entirety he is asking for because he had a duty to search for a new job to mitigate his damages.
  4. Business Law: A creditor must mitigate his damages when a debtor breaches. For example, if a debtor breaches on his car loan, the creditor must mitigate by attempting to sell the car.  He cannot keep the car and sue the debtor for damages.

How Can Failure to Mitigate Damages Be Proved?

The defendant has the burden to prove that the plaintiff failed to mitigate damages and must prove that the plaintiff could have avoided extra costs and damages such as failed to receive medical attention or have surgery to avoid future injuries. All the defendant has to prove is by a “preponderance of the evidence” that the plaintiff failed to reduce the costs or losses that he or she could have reasonably avoided.

What If the Plaintiff Does Not Take Reasonable Steps to Mitigate Damages?

When a plaintiff has been injured through the negligence of the defendant, the plaintiff has the duty to take reasonable steps to mitigate his or her damages. When the plaintiff fails to mitigate his or her damages and the defendant proves that the plaintiff did not take reasonable steps to reduce their losses after the injury, the court will the reduce the plaintiff’s damages by the amount that the plaintiff could of avoided or mitigated.

 

 

Changing An Existing Divorce Agreement

Changing An Existing Divorce Agreement.

All attempts change existing divorce agreements   involving alimony, child custody, or child support must be made in the state where the divorce was granted. All states will recognize a divorce properly granted in any other state, but is not required to do so if the original state did not have jurisdiction over the couple.

4. Construct Your Allegations

Construct a list of ‘allegations’ (relevant statements about your claims), in chronological order, beginning with some basic background about you and your spouse, and ending with the conclusion that marriage be ended in divorce and you be granted the relief you’re requesting.

TIPS

Tip 1. Relief must be supported by law

The court must (or at the very least, is supposed to) rule on points of law. Court rulings that are not supported by law can (and should) be reversed on appeal. Keep a record of the laws and rulings that entitles you to relief (supplied below). You do not have to include them in your original complaint, but may need them later.

Tip 2. Stick to the issues

Every statement/allegation should be relevant, meaning it goes directly to the relief you’re seeking. Every allegation that doesn’t support your claim, weakens it.

Generally, this includes the following and nothing more:

1) necessary background information,

2) any wrongdoing that you’re basing your claim on or, in the alternative, a standard ‘no-fault’ claim,

3) a description of your physical, emotional or financial entitlements resulting from the wrongdoing or, on the no-fault claim, your share of the marital assets as permitted by law, and

4) the relief you’re seeking.

Tip 3. Tell the truth

Don’t lie. Don’t even embellish. If you outright lie and are caught, you will be handing the other party the advantage on a silver platter.

Above all, your allegations must be plausible. A failure to make a plausible (believable) claim can get your claim dismissed.

Briefly, a ‘Motion to Dismiss’ addresses a case that is, simply put, not worthy of the court’s time. It does not address whether or not the allegations are true. In fact, in deciding whether to grant a motion to dismiss, the court will automatically assume the allegations are true. The theory is that everyone is entitled to their ‘day in court,’ unless the lawsuit, even if true, still could not possibly succeed. One reason for this might be that the allegations do not entitle the plaintiff to the relief he or she is requesting.

Allegations make statements of fact that support a claim. In the most logical sense, they could be compared to a mathematical equation: 

1 + 1 + 1 = 3 

If the allegations add up, the ‘sum’ (or in this case, the relief) should be obvious without you having to say it. In a ‘fault’ claim for divorce, the equation would look like this: 

a valid marriage existed + the plaintiff performed + the defendant did not perform = breakdown of the marriage

In a ‘no-fault’ claim for divorce, the equation would look like this: 

a valid marriage existed + both parties performed + the performance no longer justifies a continuation of the marriage for one or both of the parties  = breakdown of the marriage

The sum of the equation should be obvious. In divorce cases, it would equal the breakdown of the marriage.

Avoid adjectives, generalizing, or simply reciting legal terms. Ask yourself: do the allegations, described in their simplest form, support the desired conclusion?

Remember, a plausible claim is not merely conceivable. It is more  convincing than not.

In writing your allegations, ask yourself: Do these allegations support the desired conclusion or simply assert it? Do they add up? Are they describing something that logically must have occurred – or merely might have occurred? Do they create a reasonable expectation that your claim is legitimate  – or do they just not rule out the possibility? If you didn’t come right out and say it, could the reader draw a similar conclusion based on the allegations alone?

Your allegations will begin with your background and basic facts, followed by the breakdown of the marriage and any fault you will be able to ‘show the court,’ and then, finally, the relief you’re seeking, beginning with a divorce and working your way through property, custody and any future benefits you’ll be asking for, such as child support.

Here is a breakdown of what I’m talking about:

PARTIES / BACKGROUND

1. List of ‘facts’ describing each party (name, current address and job description) and their marriage (date and place of marriage).

2. List of ‘facts’ about any children of the parties, including names, dates of birth and whether they were part of the marriage or existed outside of marriage. Any special care or costs related to the ‘parties’ minor children’ should be described here as well.

3. List of property owned before or purchased during the marriage.

DIVORCE

4. The list continues with the allegations, which are brief statements of fact that are relevant to the divorce, and which summarize the conduct of either party, good or bad (ie., “The Plaintiff was a loyal husband and provider throughout the marriage,” and/or “The Defendant had carried on an extra-marital affair for more than six months prior to their separation.”). If you’re not making allegations of fault, this is where you would simply provide a statement alleging that the marriage has broken down beyond repair (ie., “Irreconcilable differences have arisen between the parties that have caused the irretrievable breakdown of the marriage.”).

5. Include a brief summary of the relief you are seeking (ie., “Plaintiff is therefore entitled to a divorce.”).

6. An order granting you the right to resume your maiden name would be included here.

CUSTODY

7. The list continues with a summary of only those allegations in the previous sections that relate directly to the custody claim. 

8. List your allegations (brief statements of fact) to support whatever custody arrangement you are requesting.

9.  Include a brief summary of the relief you are seeking.

CHILD SUPPORT

10. Repeat steps 7-9 from the ‘Custody’ section.

11. Be sure to include any additional and/or special needs costs you will be requesting, as well as who will be covering  health insurance.

PROPERTY

12. Repeat steps 7-9 from the ‘Custody’ section.

RELIEF

13. You will conclude your complaint with a final review of the relief you are seeking, beginning with the divorce. You do not need an exact dollar amount on the financial relief you are seeking at this time. A simple summary of your expectations is sufficient (ie., “Plaintiff requests an order that the marital home be put up for sale and that he/she be awarded half the proceeds, after expenses, upon its sale.”)

Here are more specific allegations by issue:

Sample Divorce Allegations

Jurisdiction Allegations

NOTE: Jurisdiction involves which court to file in. You must file in the proper court (the court that has ‘jurisdiction’ over the issue and location) and, in some states, you must identify, in your pleading, that it is the right court. For a divorce, legal separation or annulment, the proper court is:

1) in the state where you are a resident (check your state to see how long you need to live there to be considered a resident], and

2) in the “probate” or “family” division in your county court system.

JURISDICTION ALLEGATIONS

  1. The Court has jurisdiction over the parties and the subject matter of this action.
  2. The Plaintiff has resided in [insert your state] for [cite amount of time you lived there].
  3. [Insert your state] is the domicile of the minor children for the purposes of making a custody determination.

Background Allegations

BACKGROUND

  1. Plaintiff and Defendant were legally married on [date] in [town], [state].
  2. Plaintiff was a bona fide resident of the State of [state] when this cause of action arose and has ever since and for more than [amount of time in months or years] preceding the commencement of this action continued to be a resident.
  3. On or about [date], at the time when the cause of action arose, the Plaintiff has resided at [address].
  4. The Defendant now resides at [address].
  5. [number of children or ‘No’] children were born of the marriage; [name, date of birth and ages of children, if applicable].
  6. [if applicable] The children are presently in the custody of [‘Plaintiff,’ ‘Defendant’ or ‘the parties jointly’], with the [‘Plaintiff,’ ‘Defendant’ or ‘neither party’] acting as the primary caretaker.
  7. Plaintiff/Petitioner is [age] years of age and is a [career title and/or ‘homemaker’].
  8. Defendant/Respondent is [age] years of age is a [career title and/or ‘homemaker’].
  9. Property, real and/or personal, [‘was’ or ‘was not,’ as applicable] was legally and beneficially acquired by the parties, or either of them, during the marriage.
  10. There have been [list a number or write ‘no’] prior proceedings between the parties in the nature of domestic violence.
  11. There have been no previous proceedings between the Plaintiff and Defendant respecting the marriage, its dissolution or maintenance of the Plaintiff [‘and the parties’ minor children,’ if applicable]. 

No Fault Divorce Allegations

DIVORCE

  1. The marriage of the parties is irretrievably broken.
  2. The Wife would show unto the Court that the parties are experiencing irreconcilable differences in their marriage.
  3. Irreconcilable differences have arisen between the parties that have caused the irretrievable breakdown of the marriage. Past attempts at reconciliation have failed, and future attempts at reconciliation would be impracticable and not in the best interests of the family. As a result, the parties will have lived separate and apart for a required statutory period prior tot he date of the entry of a Judgment of Dissolution of Marriage in this cause.

Fault Divorce Allegations

DISSOLUTION OF MARRIAGE

  1. This is an action for dissolution of marriage, which is being filed only after the Husband has exhausted every effort to salvage the marriage of the parties.
  2. Wife has emotionally abandoned her Husband and children and has left him with no choice but to divorce her.
  3. The Husband would show unto the Court that the Wife is guilty of adultery during the marriage.
  4. The Defendant/Respondent committed adultery during the marriage, and such adultery has neither been forgiven nor condoned by the Plaintiff/Petitioner.
  5. The Wife would show unto the Court that the Husband is guilty of such inappropriate marital conduct as renders further cohabitation unsafe and improper.
  6. The Husband is entitled to attorney’s fees and/or court costs incurred in connection with this action.
  7. Throughout the parties’ marriage, Plaintiff/Petitioner has been a devoted, supporting and caring wife and mother. 
  8. Defendant/Respondent is guilty of gross neglect of duty and extreme cruelty.
  9. Plaintiff/Petitioner states that the violence and abuse of the Defendant/Respondent reached such a level that he needed assistance and protection from the police on [number] separate occasions, on or about [list dates].
  10. Plaintiff/Petitioner states that Defendant/Respondent was convicted of Domestic violence on or about [date].
  11.  

Custody Allegations

CUSTODY

(joint)

  1. It is in the best interests of the children that joint legal custody be awarded, with primary residential custody awarded to the Plaintiff/Petitioner.

(full)

  1. The Plaintiff/Petitioner is a fit and proper person to have the care, custody, control and education of the minor children of the parties.
  2. Since their birth, the Plaintiff/Petitioner has been the primary parent, caretaker and nurturer of the children and is in all respects a fit and proper person to have sole custody of the minor children.
  3. The minor children have been and are currently in the care and custody of the Plaintiff at the marital home in [town and state].
  4. Upon information and belief, Defendant/Respondent concurs with Plaintiff/Petitioner that it is in the best interests of the minor children that Plaintiff/Petitioner be awarded their sole legal custody and primary physical custody. The Defendant should have reasonable visitation with the minor children at times and places to be mutually agreed.

Child Support Allegations

CHILD SUPPORT

  1. The Husband and Wife should share parental responsibility of the parties’ minor children.
  2. The children need temporary and permanent support from the Husband, and the Husband has the ability to pay.
  3. The Husband has provided his family with a residence that is compatible with his wealth and standard of living. The Husband has the fiscal capacity to continue this standard of living, but the Wife does not.
  4. The Defendant/Respondent is a well and able-bodied man who is capable of making suitable provisions for the support and maintenance of the Plaintiff/Petitioner and for the support and education of the parties/ minor children in a style commensurate with that enjoyed by the parties during the marriage; whereas the Plaintiff/Petitioner lacks sufficient income and assets to adequately support herself and the children.
  5. The Plaintiff has no adequate means of support for the parties’ minor children.
  6. The Plaintiff is in need of pendente lite (latin, meaning ‘pending litigation’; refers to immediate relief granted during the litigation process) and child support.
  7.  

Place of Residence Allegations

RESIDENCE

  1. The Wife is entitled to continuing temporary and permanent exclusive possession of the marital residence, to provide a home for herself and the minor children.

Alimony Allegations

ALIMONY

  1. The Plaintiff/Petitioner has no adequate means of support for herself or the parties’ minor children.
  2. The Defendant/Respondent has a career in [describe] that yields significant earnings.
  3. The Defendant/Respondent has interests in numerous business entities from which he derives substantial income per year.
  4. The Defendant/Respondent has always been the primary provider of financial support for the marriage and/or family.
  5. The Plaintiff/Petitioner is currently unemployed and has been unemployed for [amount of time], during which time she, with the full agreement of the Defendant/Respondent, supported her family as a homemaker.
  6. The Plaintiff/Petitioner is currently in [college program] at [name of college]. Her income is insufficient to meet her needs, the needs of the parties’ minor children and to maintain the standard of living she and the Defendant established during the marriage.
  7. Even after becoming maximally self-supporting, the earnings of the Plaintiff/Petitioner clearly will be unconscionably disparate from those of the Defendant.
  8. The Husband has provided his family with a residence that is compatible with his wealth and standard of living. The Husband has the fiscal capacity to continue this standard of living, but the Wife does not.

Equitable Distribution

EQUITABLE DISTRIBUTION:

  1. The Wife claims and is entitled to an equitable distribution of all assets acquired during the marriage, pursuant to [insert your state statute here].
  2. The parties have accumulated substantial marital property during the course of the marriage to which the Plaintiff/Petitioner has made significant contributions, which marital property should be equitably divided between the parties.
  3. The parties have marital property acquired by one or both of them during their marriage, including, but not limited to, real property in [locations], securities, bank accounts, retirement assets, interests in partnerships, corporations, and limited liability companies, contract rights and interests, intellectual property rights, the value associated with the Defendant/Respondent’s name or persona, motor vehicles, tangible personal property, and other assets which constitute “marital property” within the purview of [cite your state’s code on marital property].
  4. The Plaintiff/Petitioner is the owner of non-marital property as defined in [cite your state’s statute on ‘non-marital property’], which non-marital property should be assigned to the Petitioner.
  5. The Wife needs and is entitled to possession and title to the automobile she is presently driving.
  6. The Wife is in need of and entitled to exclusive possession of the personal property contained in the marital residence now in her possession.
  7. The Husband has and is maintaining life and medical insurance for the benefit of the Wife and minor children. He should be required to continue to maintain that or comparable insurance.
  8. The parties have incurred certain debts, which the Husband should be required to discharge.
  9. The Plaintiff/Petitioner lacks sufficient income and assets to pay the costs and fees incurred in this cause while the Defendant/Respondent commands ample wealth and income to pay these costs.
  10.  

6. Construct Your Pleading

Depending on your state, you will be filing a Complaint or a Petition. At the very bottom of this article, there is a section entitled “Sample Pleadings by State.”

Here are a few sample pleadings from real cases, containing allegations and claims for a breach of contract.

These are the steps to write the claim:…. this is step…NUMBER THEM: 

You will begin by incorporating into that claim, every allegation in your complaint. Then, you will reiterate the allegations that 

It should look something like this (the numbers will be changed when you incorporate the claim into your Complaint): 

COMPLAINT FOR DIVORCE

        NOW COMES….

Allegations

end with….

WHEREFORE, Plaintiff requests that this Honorable Court issue a judgment dissolving the marriage between the parties [and, if applicable] and permitting the Plaintiff to resume her birth name of [full maiden name].

PETITION FOR DIVORCE

        NOW COMES….

Allegations

end with….

WHEREFORE, Plaintiff requests that this Honorable Court issue a judgment dissolving the marriage between the parties [and, if applicable] and permitting the Plaintiff to resume her birth name of [full maiden name].

 7. Prepare an Affidavit

Many states require an affidavit…sworn statement….when filing for divorce.

Sample:

AFFIDAVIT OF [Your Name]

List statements…

STATE OF MISSISSIPPI

COUNTY OF______________

     This day personally appeared before me, the undersigned authority in and for the state and county aforesaid, within my jurisdiction, [your name], who, having been by me first duly sworn, stated on oath that the matters, facts, allegations and things contained and set forth in the above and foregoing Complaint/Petition for Divorce are true and correct as therein stated, and further that this Complaint/Petition for Divorce has not been filed by collusion with the Husband/Wife, or any alleged witnesses, for the purpose of obtaining the divorce, but that the cause or causes for divorce stated therein are true as stated.

Signed by you and then notarized.

 8. File Your Pleading

Filing and fees

 9. Serve Your Pleading

Filing and fees

SAMPLE PLEADINGS BY STATE

Depending on your state, you will either file a petition or a complaint. Here are some real life samples to illustrate the standard procedure and style for filing for a divorce in your state (this is a work in progress so we may not have your state listed yet).

Here’s what I have so far:

Florida

Sample Divorce Petition

(agreement of the parties)

NOTES:

—

IN THE CIRCUIT COURT OF THE [Removed] JUDICIAL CIRCUIT,

IN AND FOR [Removed] COUNTY, FLORIDA

Case No.: [Number will be entered by Court]

Division: [Removed]

[Name Removed],

     Husband,

and

[Name Removed],

     Wife.

PETITION FOR SIMPLIFIED DISSOLUTION OF MARRIAGE

     We, [name removed], Husband, and [name removed], Wife, being sworn, certify that the following information is true:

  1. We are both seeking a dissolution of our marriage.
  2. Husband lives in [county removed] County, Florida, where she has resided since [date removed].
  3. Wife lives in [county removed] County, Georgia, where she has resided since [date removed].
  4. We were married on [date removed], in [city removed], Florida.
  5. Our marriage is irretrievably broken. All previous attempts to repair the marriage have failed. Any future attempts would be futile, are not desired by either of us, and would not be in our best interests.
  6. Husband has a child from another marriage. We do not have any minor children belonging to the marriage, and Wife is not pregnant.
  7. All of our marital assets and liabilities have been divided between us by private agreement. We each certify that our agreement complies with all applicable laws and was entered into freely and voluntarily by each of us.
  8. Wife requests that she resume the use of her former name, “[name removed]”.
  9. We each certify that we have signed this petition voluntarily, and that neither of us has been threatened or pressured into do so. We understand that signing and filing this petition with the Court may result in a final judgment ending our marriage and terminating any further claims to relief in the future.
  10. We each understand that we may be giving up legal rights under our marriage by entering into the aforementioned private agreement. 
  11. We each agree to be present at a hearing to testify to the facts presented in this petition.
  12. We request that the Court grants the dissolution of our marriage and approve our marital settlement agreement.

No Fault: Illinois Petition

Divorce – Custody – Child Support – Alimony

PETITION FOR DISSOLUTION OF MARRIAGE

          NOW COMES the Petitioner, [name], by her attorneys, [names], and for her Petition for Dissolution of Marriage against the Respondent, [name], states as follows:

  1. The Petitioner is [42] years of age and resides at [address], Illinois.
  2. The Petitioner is a homemaker.
  3. The Respondent is [38] years of age and resides at [address], Illinois.
  4. The Respondent is a businessman with a variety of interests.
  5. The parties were married on the [date], in Las Vegas, Nevada. Said marriage is registered in the State of Nevada.
  6. The Petitioner was, at the time of the commencement of this action, a resident of the State of Illinois for more than 90 days immediately and continuously prior to the filing of this action, and such residence has been maintained to the present date.
  7. The Petitioner has no information or belief that a similar Petition for Dissolution of Marriage is pending in another county of this state or in another state.
  8. Irreconcilable differences have arisen between the parties that have caused the irretrievable breakdown of the marriage. Past attempts at reconciliation have failed, and future attempts at reconciliation would be impracticable and not in the best interests of the family. As a result, the parties will have lived separate and apart for a required statutory period prior to the date of the entry of a Judgment of Dissolution of Marriage in this cause.
  9. As a result of the marriage, the parties have three living children, namely, [name and date of birth of all three minor children]. No other children were born to or adopted by the parties, and the Wife is not now pregnant.
  10. The Petitioner is a fit and proper person to have the care, custody, control and education of the minor children of the parties.
  11. The Petitioner has not participated, in any capacity, in litigation in this state or any other state concerning the custody of the minor children, and the Petitioner has no knowledge of any pending custody proceedings involving the minor children in a court of this or any other state.
  12. The Petitioner knows of no other person not a party to this proceeding who claims to have custody or visitation rights with the minor children.
  13. The Respondent is a well and able-bodied man who is capable of making suitable provisions for the support and maintenance of the Petitioner and for the support and education of the parties’ children in a style commensurate with that enjoyed by the parties during the marriage. The Petitioner lacks sufficient income and assets to adequately support herself and the children.
  14. The Petitioner lacks sufficient income and assets to pay and defray the attorneys’ fees and costs that are expected to be incurred in this cause while the Respondent commands ample wealth and income to pay and defray the Petitioner’s attorneys’ fees and costs in their entirety.
  15. The parties have accumulated substantial marital property during the course of the marriage to which the Petitioner has made significant contributions, which marital property should be equitably divided between the parties.
  16. The Petitioner is the owner of non-marital property as defined in Section 503(a) of the Illinois Marriage and Dissolution of Marriage Act, which non-marital property should be assigned to the Petitioner.

               WHEREFORE, the Petitioner, [name], prays for the following relief:

A. A judgment for Dissolution of Marriage be entered in favor of both parties.

B. Petitioner be awarded both the temporary and permanent custody, care, control and education of the minor children of the parties and the Respondent be granted reasonable visitation rights with the children.

C. Petitioner be awarded a fair and reasonable sum from the Respondent for temporary and permanent maintenance.

D. Petitioner be awarded a fair and reasonable sum from the Respondent for temporary and permanent support and education of the minor children.

E. Respondent be required to pay the Petitioner’s temporary and permanent attorneys’ fees and costs.

F. Petitioner be awarded an equitable share of the parties’ marital property and all of the Petitioner’s non-marital property.

G. Petitioner and the parties’ minor children be granted temporary and permanent use and possession of the marital residence.

H. For such other and further relief as the Court deems just.

No Fault: Texas Petition

Divorce (agreement of the parties anticipated)

ORIGINAL PETITION FOR DIVORCE

1. Discovery Level

     Discovery in this case is intended to be conducted under level 2 of rule 190 of the Texas Rules of Civil Procedure.

2. Parties

     This suit is brought by [name], Petitioner, who resides in [town], Texas.

3. Domicile

     Petitioner has been a domiciliary of Texas for the preceding six-month period and a resident of this county for the preceding ninety-day period.

4. Service

     No service on Respondent is necessary at this time.

5. Protective Order Statement

     No protective order under title 4 of the Texas Family Code is in effect, and no application for a protective order is pending with regard to the parties to this suit.

6. Dates of Marriage and Separation

     The parties were married on or about [date] and have ceased to live together as husband and wife.

7. Grounds for Divorce

     The marriage has become insupportable because of discord or conflict of personalities between Petitioner and Respondent that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.

8. Division of Community Property

     Petitioner believes Petitioner and Respondent will enter into an agreement for the division of their estate. If such an agreement is made, Petitioner requests the Court to approve the agreement and divide their estate in a manner consistent with the agreement. If such an agreement is not made, Petitioner requests the Court to divide their estate in a manner that the Court deems just and right, as provided by law.

9. Separate Property

     Petitioner owns certain separate property that is not part of the community estate of the parties, and Petitioner requests the Court to confirm that separate property as Petitioner’s separate property and estate.

10. Statement on Alternative Dispute Resolution

      Petitioner has signed, or will sign, a statement on alternative dispute resolution, which is attached as Exhibit A. 

11. Prayer

      Petitioner prays that citation and notice issue as required by law and that the Court grant a divorce and all other relief requested in this petition.

      Petitioner prays for general relief.

Case 1: Homeowner v. Contractor Motion to Dismiss

DEFENDANT SMITH’S MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT

    NOW COMES DEFENDANT Smith, without counsel, and requests that this Court dismiss him as a Defendant in the Plaintiffs’ Amended Complaint, pursuant to Mass. R. Civ. P. 12(b). Smith offers, as his bases to support this motion, the following:

  1. Failure based on the doctrine of res judicata

   At the [Date] hearing and subsequent Order dated [Date], this Court has already recognized and adjudicated that the Plaintiffs have failed to establish Smith’s involvement in their Counts I, III, VI, VII, VIII, IX and XI, as each of these counts require, by definition, that the alleged Defendant made representations to the Plaintiffs. As previously argued and adjudicated, all of the Plaintiffs’ pleadings fully acknowledge that they were not even aware of Smith’s existence until after the work was concluded, making it impossible for them to have relied upon any representations from Smith, implied or otherwise. Although the Court permitted the Amended Complaint, it admonished the Plaintiffs not to ‘cookie cut’ Smith into their claims in the same manner that they had in the original complaint. Once again, this is what they are attempting to do in the above referenced counts. Therefore, these claims should be dismissed on the basis of res judicata, for the same reasons that they were originally dismissed.

  1. Failure due to a misstatement of fact

   As to the balance of the claims, the basis for the Plaintiffs’ Amended Complaint is summed up in their paragraph 17, where they allege:

“By obtaining all necessary permits for the Project, Smith assumed the role of Contractor pursuant to M.G.L. c. 142A, Section 1.”

   The Plaintiffs’ claim that Smith’ activities in ‘obtaining’ the permit equates to ‘assuming the role of contractor pursuant to M.G.L. c. 142A, Section 1’ a misrepresentation of that statute. In fact, that statute defines a “contractor” as; “any person who owns or operates a contracting business who, through himself or others, undertakes, offers to undertake, purports to have the capacity to undertake, or submits a bid for, residential contracting work.” To ‘undertake’ is defined in the legal sense as ‘an agreement to be responsible’ for something. The key question then, is; was there an agreement, and if so, what exactly was it? The Plaintiffs’ do not answer either question. They simply misquote a statute in an attempt to attach Smith to this claim. While they are certainly entitled to draw any conclusion about the statute that they wish, a defendant is entitled to know the legal basis for those conclusions. As one Court put it; ‘If the plaintiff’s allegations don’t specifically outline where, how or why the defendants owed the alleged contractual obligations that were allegedly breached, then the court should dismiss the breach of contract cause of action against them.’ (Sheriff’s Silver Star Assn., Inc. v County of Oswego, 27 AD3d 1104, 1105-1106 [2006])

   This omission is particularly significant in the present case because, without any legal basis for their conclusion, the Plaintiffs have no grounds whatsoever for including Smith in this action. This failure then, on their second attempt to include Smith, represents grounds for dismissal.

  1. Failure due to waiver / estoppel

   Assuming, for the moment, that the Plaintiffs’ had provided sufficient allegations to form a basis to conclude that Smith was a party to the contract, they failed the second requirement of establishing a breach. For, if Smith was a party to the contract, as they allege, wouldn’t he be entitled to the contractual performance required from the Plaintiffs in addition to being responsible for the obligations therein? And in that case, wouldn’t the Plaintiffs have been obliged, under the contract, to make valid attempts to give Smith, as the ‘contractor,’ a fair opportunity to make good on the promises implied therein? The Plaintiffs’ own account of the record clearly shows that Smith was denied any opportunity to act in respect to the contract. Specifically, Mass 93A, Section 9, requires, at the very least, that an alleged party be sent a “demand letter” granting; 1) thirty (30) days’ notice and 2) a fair “opportunity” to make a good-faith effort to resolve the issue. However, immediately upon learning of Smith’ alleged involvement, the plaintiffs filed this lawsuit. Their actions not only effectively prevented Smith from performing under the alleged contract, but are, in and of themselves, a breach of the contract, which one court described as ‘anything that [would] have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.’ (Anthony’s Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471 (1991)) Certainly Smith’ right to address any potential complaints regarding performance would be one of the ‘fruits of the contract’ that Smith was unquestionably denied. The Plaintiffs’ claims fail on account of their own breach. And this failure is not a matter for a fact finder, because it is fully supported by the Plaintiffs’ own account of the facts, as outlined in their Amended Complaint. Therefore, it represents a failure to state a claim, and should be dismissed on that basis.

Fault: Florida

FAULT: Abandonment – Adultery – Marital Misconduct

 

 

HEADING HERE

PETITION FOR DISSOLUTION OF MARRIAGE

     For her Petition for Dissolution of Marriage, the Wife states:

1. ACTION FOR DISSOLUTION:  This is an action for dissolution of marriage, which is being filed only after the Petitioner has exhausted every effort to salvage the marriage of the parties. However, [Respondent] has emotionally abandoned his wife and children and has left her with no choice but to divorce him.

2. JURISDICTION:  The Court has jurisdiction over the parties and subject matter of this action.

3.  RESIDENCY: Both parties have been residents of the State of Florida for more than six months prior to the filing date of this petition.

4. MARRIAGE:  The parties were married to each other on [date], in Dallas, Texas.

5. IRRETRIEVABLY BROKEN:  The marriage of the parties is irretrievably broken because of the Husband’s extra marital affairs and other marital misconduct.

6. CHILDREN: There are two children born of this marriage: [names and dates of birth].

7. SHARED PARENTAL RESPONSIBILITY: The Husband and Wife should share parental responsibility of the children.

8.  RESIDENTIAL PARENT: The Wife desires and it is in the children’s best interest that she be the primary residential parent of the minor children, pendente lite and permanently. 

9. CHILD SUPPORT:  The children need temporary and permanent support from the Husband, and the Husband has the ability to pay. The lifestyle and background of the parties and the children is such that the Husband should provide life insurance, health insurance, private school; and, continue to maintain the existing lifestyle of the children.

10. STANDARD OF LIVING: The Husband is a prominent athlete and has, due to his substantial earning power, provided the parties and their children with a lavish lifestyle. The Husband has provided his family with a residence that is compatible with his great wealth and high standard of living. The Husband has the fiscal capacity to continue his high style of living, but the Wife does not.

11.  ALIMONY: The Wife needs and is entitled to temporary, rehabilitative, permanent, periodic and lump sum alimony, and the Husband is well able to pay all forms of alimony.

12. MARITAL RESIDENCE AND CONTENTS AS LUMP SUM ALIMONY:  The parties jointly own, as their former marital home, the real property located at [address], Florida. The Wife is entitled to receive, the marital home and contents, as lump sum alimony and partial equitable distribution.

13.  EXCLUSIVE POSSESSION:  The Wife is entitled to continuing temporary and permanent exclusive possession of the marital residence, to provide a home for herself and the minor children.

14. EQUITABLE DISTRIBUTION: The Wife claims and is entitled to an equitable distribution of all assets acquired during the marriage, pursuant to Section 61.075, Florida Statutes.

15.  AUTOMOBILE FOR THE WIFE: The Wife needs and is entitled to possession and title to the automobile she is presently driving.

16.  PERSONAL PROPERTY: The Wife is in need of and entitled to exclusive possession of and title to the real and personal property now in her possession. This includes the personal property contained in the marital residence.

17.  LIFE AND MEDICAL INSURANCE:  The Husband has and is maintaining life and medical insurance for the benefit of the Wife and minor children. He should be required to continue to maintain that or comparable insurance.

18.  DEBTS: The parties have incurred certain debts, which the Husband should be required to discharge.

19.  ATTORNEYS’ FEES, SUIT MONIES, AND COSTS: The Wife has obligated herself to pay reasonable attorneys’ fees, suit monies, and costs to her attorneys and other professionals in this action and asks for a judgment against the Husband for a sum considered to be a reasonable fee for those services, based upon her need and his ability to pay.

20.  ANTENUPTIAL AGREEMENT: On [date] the parties executed a ‘document’ titled ‘Antenuptial Agreement.’ A determination as tot he validity or enforceability of the agreement requires additional investigation and discovery.

        WHEREFORE, it is requested that the Court grant relief consistent with this Petition for Dissolution of Marriage.

Fault: Maryland

COMPLAINT FOR DIVORCE, CUSTODY, CHILD SUPPORT, ALIMONY, EQUITABLE DISTRIBUTION OF PROPERTY AND OTHER RELIEF

     Plaintiff, [name], by her attorneys [name], in support of her Complaint for Divorce, Alimony, Custody, Child Support and Other Relief, says:

  1. The Plaintiff is an adult citizen of the United States and resident of the State of Maryland where she has resided for more than one (1) year prior to the filing of this Complaint.
  2. The Defendant is an adult citizen of the United States. Upon information and belief, he is a resident of the State of Nevada.
  3. The parties are husband and wife, having participated in a religious ceremony on [date], and in a religious and civil ceremony on [date], both in [town], Maryland.
  4. The State of Maryland was the matrimonial domicile of the parties immediately before their separation.
  5. Two children were born to the parties, namely [names and dates of births]. The Defendant is the natural father of both minor children.
  6. Since their birth, Plaintiff has been the primary parent, caretaker and nurturer of the children and is in all respects a fit and proper person to have sole custody of the minor children. The minor children have been and are currently in the care and custody of the Plaintiff at the marital home in [town], Maryland. 
  7. Upon information and belief, Defendant concurs with Plaintiff that it is in the best interests of the minor children that Plaintiff be awarded their sole legal custody and primary physical custody. The Defendant should have reasonable visitation with the minor children at times and places to be mutually agreed.
  8. Pursuant to Md. Code (1984), Family Law Article, Section 5-204(b)(2), the State of Maryland is the domicile of the minor children for the purposes of making a custody determination.
  9. Plaintiff has neither participated in, nor is she aware of, any other litigation concerning the custody of the minor children in the State of Maryland or any other state or territory.
  10. Plaintiff does not know of any person, not a party to these proceedings, who has physical custody of the minor children or claims to have custody or visitation rights with respect to the minor children.
  11. The Defendant committed adultery during the marriage, and such adultery has neither been forgiven nor condoned by the Plaintiff.
  12. The Defendant is a [career and awards]. He continues to [achieve] significant earnings.
  13. The Defendant has interests in numerous business entities from which he derives substantial income per year.
  14. The Defendant is capable of continuing to contribute to the support of the Plaintiff and the minor children consistent with the standard of living during the marriage. The Defendant has always been the primary provider of financial support for the family.
  15. The Plaintiff is currently in her second year of a [degree program and name of college]. The income from the Plaintiff’s employment is insufficient to meet her needs, the needs of her children, and to maintain the standard of living she and the Defendant established during the marriage. Even after becoming maximally self-supporting, the earnings of the Plaintiff clearly will be unconscionably disparate from those of the Defendant.
  16. The Plaintiff is in need of pendente lite and child support.
  17. The parties have marital property acquired by one or both of them during their marriage, including, but not limited to, real property in Maryland and in other locations, securities, bank accounts, retirement assets, interests in partnerships, corporations, and limited liability companies, contract rights and interests, intellectual property rights, the value of goodwill attributable to the Defendant, the value associated wit Defendant’s name or persona, motor vehicles, tangible personal property, and other assets which constitute “marital property” within the purview of Maryland Code (1984), Family Law Article, Section 8-201(c).
  18. Throughout the parties’ marriage, Plaintiff has been a devoted, supporting and caring wife and mother. The Plaintiff’s monetary and non-monetary contributions to the well-being of the family throughout their marriage have been, and continue to be, substantial. Defendant’s negative non-monetary contributions have been substantial.

     WHEREFORE, the premises considered, the Plaintiff prays:

A. That she be granted an absolute divorce from the Defendant, [name], on the ground of adultery;

B. That the Plaintiff be granted sole legal custody of the minor children of the parties and that the Plaintiff be granted primary physical custody of the minor children, both pendente lite and permanently, with an appropriate access schedule set forth for the Defendant;

C. That the Defendant be required to pay the Plaintiff a reasonable sum as support and maintenance for the minor children, both pendente lite and permanently;

D. That the Plaintiff be awarded alimony both pendente lite and indefinitely;

E. That the Court determine the ownership of all property titled in the names of the parties or either of them, and to the extent that any dispute exists between them as to such ownership, that the Court enter a decree declaring the ownership interests of the parties;

F. That the Court determine which property is marital property, including without limitation any dissipated marital property, and order the Defendant to account for all marital property and its disposition;

G. That the Court value and equitably distribute all marital property, and that the Plaintiff be awarded an appropriate monetary award as an adjustment of the rights and equities of the parties, and that such award immediately be reduced to judgment, with interest thereon;

H. That a Qualified Domestic Relations Order, or other appropriate order, be entered dividing any deferred income, retirement, or IRA accounts accumulated during the marriage;

I.  That the Defendant be ordered to pay to the Plaintiff her reasonable attorney’s fees, court costs, and suit money, pendente lite and upon the conclusion of this matter; and 

J. That the Plaintiff be awarded such other and further relief as to the Court may deem just and proper and as the nature of her cause may require.

        I HEREBY solemnly declare and affirm under the penalties of perjury that the contents of the foregoing are true to the best of my knowledge, information and belief.

Fault: Mississippi

COMPLAINT FOR DIVORCE

     COMES NOW the Plaintiff [name] (hereinafter referred to as “Wife”), by and through counsel, and files this her Complaint for Divorce against Defendant, [name] (hereinafter referred to as “Husband”), and in support thereof would show the following:

Jurisdiction and Venue

1. This Court has jurisdiction of the parties, has subject matter jurisdiction pursuant to the provisions of Miss. Code Ann., Section 93-5-11 (1972, as amended).

2.  Wife is an adult resident citizen of [county], Mississippi and has been such for six (6) months preceding the commencement of this action. Husband is an adult resident citizen of [county], Mississippi and has been such for six (6) months preceding the commencement of this action, and may be served with process at his place of employment, [name and location of place of employment].

The Facts

3.  Husband and Wife were lawfully married in [county], Mississippi, on [date], and continued to live together as husband and wife until their separation in [month and year]. Five (5) children were born to the union of the parties, namely [names and dates of births of children]. Wife is not now pregnant.

4.  Husband and Wife are both members oft he Caucasian race. Husband is not now engaged in the armed services of the United States of America.

Grounds for Divorce

5.  Pursuant to the language, meaning and legislative intent of Mississippi Code Ann. Section 93-5-1 (1972, as amended), Wife charges Husband with:

a. habitual cruel and inhuman treatment;

b. habitual and excessive use of opium, morphine, or other like drug;

c. habitual drunkenness; and

d. in the alternative, irreconcilable differences.

Relief Sought

6.  Wife is entitled to, and should be awarded, the following relief:

a. a full, final and absolute divorce from Husband;

b. full legal and physical custody of the parties’ minor children; 

c. a reasonable sum paid by Husband to Wife as child support for the care, use and benefit of the minor children and any reasonable expenses for the children, including medical costs, school costs and other expenses;

d. the marital residence located at [address], Mississippi, to be sold and the proceeds equitably divided between the parties;

e. exclusive use, possession and ownership of all household furniture, furnishings, appliances and articles of household use accumulated by the parties during the marriage;

f. exclusive use, possession and ownership of all personal property accumulated by the parties during the marriage, including the vehicle(s) of the parties;

g. Husband to assume and pay all outstanding indebtedness incurred by the parties during the marriage;

h. Husband shall be responsible for one-half (1/2) of all extracurricular activities of the minor children;

i. Husband shall be responsible for one-half (1/2) of the college expenses of the minor children of the parties;

j. Husband to pay a reasonable sum as alimony to Wife;

k. Wife be adjudicated the owner of and awarded the ownership of all property that she purchased prior to the marriage of the parties, both real and personal, acquired by her after their marriage; that Wife be adjudicated the owner of all such property and Husband be ordered to convey all such property that might be titled in his name to Wife under the theory of resulting trust; and that in the event that any of the property belonging to the parties is determined to be marital property, in the alternative, Wife shows and alleges that she has an equitable interest in and to all of said property, together with Husband, and that according to the Las of this State, same should be equitably divided and distributed between them by the Court, including, but not limited to, the use and entry of a Qualified Domestic Relations Order (QDRO), under Federal law where necessary, for the equitable division and distribution of any savings accounts, pension plans, military retirement plans and any and all other retirement plans and the like of the parties;

l. Husband to pay Wife’s reasonable costs and fees, as this action was commenced due to the marital misconduct of Husband, and Wife is without sufficient means to pay the costs of this action; and

m. Husband to be enjoined from harassing, threatening, or abusing Wife, or causing anyone to harass, threaten, or abuse Wife.

Temporary Relief Sought

7. Wife prays that her Complaint for Divorce also be treated as a Petition for Temporary Relief and Wife prays that this Court will set for hearing as soon as practicable and without delay a Temporary Hearing awarding unto the Wife the following temporary relief, to wit:

a. temporary legal and physical custody of the minor children;

b. Husband to pay unto Wife a reasonable sum for the temporary child support for the care, use and benefit of the minor children, as well as any reasonable expenses for the children, including medical costs, school costs and other expenses;

c. the marital residence located at [address] Mississippi, to be placed on the market for sale;

d. temporary exclusive use and possession of all household furniture, furnishings, appliances and articles of household use accumulated by the parties during their marriage;

e. temporary exclusive use and possession of all personal property accumulated by the parties during the marriage, including the vehicle(s) of the parties;

f. temporary alimony;

g. Husband to pay Wife’s temporary attorney’s fees, as this action was commenced due to the marital misconduct of Husband;

h. enjoining Husband from harassing, threatening, or abusing Wife, or causing anyone to harass, threaten or abuse Wife; and

i. enjoining Husband from disposing or secreting any assets, whether real or personal or mixed, which belongs to the Wife or which was acquired during the marriage, all pursuant to Rule 65 of the Mississippi Rules of Civil Procedure.

     WHEREFORE, PREMISES CONSIDERED, Wife prays that this her Complaint for Divorce be received and filed and that summons be issued for Husband, [name], in the form and manner prescribed by law and that, upon a temporary hearing and a final hearing of this cause, this Court will enter its judgments awarding unto Wife the relief prayed for herein.

Prayer for General Relief

     And if Wife has prayed for insufficient or improper relief, then she now prays for all other relief, general and specific, to which she may be entitled in the premises.

Respectfully submitted,

(signed with a sworn statement, notarized)

Fault: New Hampshire

STATE OF NEW HAMPSHIRE

Merrimack, SS

PROBATE COURT

FILE NO.:

JOHN DOE,

Petitioner

v.

JANE DOE,

Respondent

 

PETITION FOR DIVORCE

           Petitioner, John Doe, in support of his Petition for Divorce, states the following:           

  1. The Petitioner is an adult citizen of the United States and a resident of Merrimack County, New Hampshire, where he has resided for approximately eleven (11) months prior to the filing of this petition.
  2. The Respondent is an adult citizen of the United States and had resided together with the Petitioner in Merrimack County, New Hampshire, until March 3rd, 2020, when she abruptly left the residence and relocated to Concord, NH.
  3. Petitioner and Respondent were lawfully married in Rockingham County, New Hampshire, on [date], 2017, and continued to live together as husband and wife until their separation on [date], 2020. No children were born to, or adopted by, the parties. Respondent is not now pregnant.
  4. There are no actions for enforcement, or proceedings relating to domestic violence, domestic relations, protective orders, marriage dissolution, paternity or other proceedings in any court in any state regarding or affecting the marriage between the parties.
  5. The parties purchased a mobile home that became the marital residence on [date], 2018, and they moved into the residence in [date], 2019.
  6. Neither party owns real estate individually.

GROUNDS FOR DIVORCE

  1. Pursuant to NH Section 458:7, the divorce should be decreed in favor of the Petitioner for the following reasons:

a. Adultery: Upon information and belief, the Respondent has engaged in an adulterous affair for at least three (3) months prior to the date of separation between the parties on [date], 2020, when she moved into the home of her new partner.

b. Extreme cruelty and Injury to health and reason, including, but not limited to, the following:

i. The Respondent failed and refused to house-train her animals (4 cats and 2 dogs) and, additionally, left them alone for long periods of time. As a result, they caused serious destruction to the property, including leaving urine and feces throughout the home, which the Petitioner, after long days of work in the construction field, would have to clean each night.

ii. The Respondent lives in filth, including, but not limited to, leaving feces and urine to sit for long periods of time and soak into the wooden floors, and a general refusal to clean up after herself at all.

iii. After Petitioner installed new wooden floors and walls in the property, the Respondent permitted her animals to cause holes in the walls and generally destroy everything in the house.

iv. Whenever the Petitioner would attempt to discuss the filth and destruction, the Respondent would threaten to leave or would actually leave.

v. When the Petitioner discovered that the Respondent was having an affair, the Respondent left and then immediately began making accusations of abuse against the Petitioner (abuse had never been mentioned before this and, in fact, the Respondent’s family and children from a previous marriage have all praised the Petitioner for his conduct toward her and her children). At one point, the Respondent and her boyfriend contacted the local police to report the Respondent missing. She threatened, by text, to contact the police “again” if the Petitioner takes her animals – which she abandoned when she left the marital home – to the SPCA, where they can perhaps find better homes.

c. In the alternative, the Petitioner would cite, as a reason, irreconcilable differences, pursuant to NH Section 458:7(a).

DIVISION OF PROPERTY

  1. The Petitioner purchased a mobile home trailer in extremely poor condition for $9,700.00 on [date], 2018, which is located on a rented lot at [address], NH. During the 18 months of ownership, the Petitioner has worked almost around the clock, both to earn the money to pay constructions costs to fix up the mobile home, and in addition, providing much of the labor himself. He has re-framed, re-roofed and re-sided the entire structure, put in hard wood reinforcement beams, insulated, re-plumbed, re-wired and sheet-rocked the entire interior. He finished and painted much of the walls and trim, and laid down wooden floors. He put in a new heating system, kitchen cabinets, appliances. While the Petitioner was paying for everything and doing all the work, the Respondent and her animals were destroying the property faster than he could fix it. There are multiple holes in the walls from the animals, as well as damage to the wooden floors. Furthermore, the Petitioner still owes thousands of dollars to the contractors who did the insulation, plumbing, electrical, heating and for much of the materials. Since the property is not finished, its value remains very low. There is currently no equity, even without the Petitioner being reimbursed for any of his own personal contributions.
  2. Under NH 458:16-a (II), the Court may decide that ‘equal division’ would not be appropriate and equitable after considering the following factors:

a. The duration of the marriage is too short to merit any consideration on the basis of time shared together.

b. The Respondent did not contribute in any way (not financially, physically, nor even emotionally) to the growth in the value of the property. In fact, her actions and, in particular, her neglect of her own animals, caused a marked diminution of the property value. There are holes in the new walls. The wooden floor, which is less than a year old, has to be completely refinished, and in a few places, where the feces and urine of her animals was left unheeded (such as in her children’s room, when they visited), the boards have to be replaced.

c. There is, as well, a significant disparity between other contributions to the marriage. The effort of the Petitioner verses the Respondent is staggering. While the Respondent virtually did nothing but take selfies of herself on her phone all day (with filters), the Petitioner was working around the clock, and then cleaning up after her at night. The Petitioner made repeated attempts to communicate, while the Respondent was simply leaving the home and beginning a new relationship elsewhere. The Petitioner also went over and above the call of duty with the Respondent’s children, doing homework with them, taking them on hikes, enrolling them in horseback riding, while virtually being forbidden from bringing his own son into the home, and being yelled at for visiting even him (and thereby seeing his ex-girlfriend).

d. Finally, the faults described in paragraphs 7(a) and (b) caused the breakdown of the marriage and, as well, caused the Petitioner substantial mental pain and suffering, and resulted in substantial economic loss.

RELIEF SOUGHT

  1. Petitioner is entitled to, and should be awarded, the following relief:

a. a full, final and absolute divorce from Respondent;

b. full possession and ownership of the mobile home located at [address], NH;

c. the parties have incurred certain debts, including the loans and taxes owed on the mobile home and auto loans on both parties’ vehicles. The Petitioner requests that the loans and taxes on the mobile home and his truck be assigned to him if he is granted sole possession and ownership, and the loan on the Respondent’s car be assigned to her.

AFFIDAVIT

            I swear and affirm that the foregoing information is true and correct to the best of my knowledge.

                                                                                    THE PETITIONER,

Dated:                                                

________________________________

John Doe

Address

Phone number

Fault: Ohio

COMPLAINT FOR DIVORCE AND OTHER EQUITABLE RELIEF

  1. Plaintiff has resided in [town], Ohio for in excess of six months and for a total of 4.5 uninterrupted years preceding the filing of this complaint.
  2. The Plaintiff and Defendant were married at [city and county], Ohio on [date] and one minor child was born as issue of this marriage, namely, [name and date of birth of child]. Plaintiff has one child not an issue of this marriage, namely [name and date of birth of child] who is not the biological nor adopted child of Defendant.
  3. Defendant is guilty of gross neglect of duty, extreme cruelty.
  4. Plaintiff states that Defendant was convicted of Domestic Violence, a felony of the 5th degree, on or about [date].

Fault: Tennessee

COMPLAINT FOR ABSOLUTE DIVORCE

I. 

     Plaintiff, [name], (hereinafter called “Wife”) is married to Defendant [name], hereinafter called “Husband”). The following is the statistical information pertaining to said parties required by T.C.A. 36-4-106:

WIFE:

a. Full maiden name of Wife: [name]

b. Race: White

c. Residence address: [address]

d. Length of residence at above address: 21 years

e. Date and place of birth: 1-15-55; Ashland, KY

f. Number of previous marriages: 1

g. Member of the Armed Services of the United States: no

h. Employed: self

HUSBAND: 

i. Full name of Husband: [name]

j. Race: White

k. Residence address: [address]

l. Length of residence at above address: over 20 years in TN

m. Date and place of birth: 3/19/55; Benson, NC

n. Number of previous marriages: 1

o. Member of the Armed Services of the United States: no

p. Employed: self

q. Date and place of marriage of the parties: 5-6-89

r. Date of separation of the parties: date of filing

s. Residence of the parties at the time of their separation: [address]

t. Minor children born of this marriage and their dates of birth: none

u. Grounds for divorce relied on by Plaintiff: Adultery; Inappropriate Marital Conduct; Irreconcilable Differences

v. Description of any other litigation concerning the custody of these children in this or any other state in which either party has participated: None

II.

     The Wife would show unto the Court that the Husband is guilty of adultery during the marriage.

III.

     The Wife would show unto the Court that the Husband is guilty of such inappropriate marital conduct as renders further cohabitation unsafe and improper.

IV.

     The Wife would show unto the Court that the parties are experiencing irreconcilable differences in their marriage.

V. 

     The Wife would show unto the Court that the parties entered into a Prenuptial Agreement prior to their marriage, which Prenuptial Agreement the Wife will seek to have enforced.

     WHEREFORE, WIFE PRAYS:

  1. That proper process issue and be served upon the Husband and that the Husband be required to answer within the time prescribed by law, but the oath to his answer is waived.
  2. That the Prenuptial Agreement entered into by and between the parties prior to their marriage be enforced.
  3. That upon a hearing, the Wife be awarded an Absolute Divorce from the Husband and that she b e restored to all the rights and privileges of an unmarried person.
  4. That the Wife be awarded her attorney’s fees incurred in connection with this action.
  5. That the Court costs of this cause be taxed to the Husband.
  6. That the Wife have such other further and general relief to which she may be entitled.

Respectfully submitted,

Fault: Texas

PETITION FOR DIVORCE AND TEMPORARY RESTRAINING ORDER

1. Discovery Level

    Discovery in this case is intended to be conducted under level 2 of rule 190 of the Texas Rules of Civil Procedure.

2. Parties

    This suit is brought by [name], Petitioner. The last three numbers of Petitioner’s Social Security number are [numbers].

     [name] is Respondent.

3. Domicile

     Petitioner has been a domiciliary of Texas for the preceding six-month period and a resident of this county for the preceding ninety-day period.

4.  Service

     Process should be served on Respondent at any place she may be located.

5.  Protective Order Statement

     No protective order under title 4 of the Texas Family Code, under Chapter 7A of the Texas Code of Criminal Procedure, or an order for emergency protection under Article 17.292 of the Texas Code of Criminal Procedure is in effect, and no application for a protective order is pending with regard to the parties to this suit or the child of the parties to this suit.

6. Dates of Marriage and Separation

     The parties were married on or about [date] and ceased to live together as spouses on or about [date].

7.  Grounds for Divorce

     The marriage has become insupportable because of discord or conflict of personalities between Petitioner and Respondent that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.

     Respondent has committed adultery.

8.  Children of the Marriage

     Petitioner and Respondent are parents of the following child of this marriage who is not under the continuing jurisdiction of any other court: [name, sex and date of birth of child].

     There are no court-ordered conservatorships, court-ordered guardianships, or other court-ordered relationships affecting the child the subject of this suit.

     Information required by section 154.181(b) of the Texas Family Code is provided in the statement attached as Exhibit “A”.

 

DIVORCE LAW BY STATE

This is a work in progress so I may not have your state listed yet. Feel free to email me, and quite possibly I will put your state on priority.

Here’s what I have so far (finished states have links available when you hover over them):
Alabama Alaska Arizona Arkansas
California Colorado Connecticut Delaware
Florida Georgia Hawaii Idaho
Illinois Indiana Iowa Kansas
Kentucky Louisiana Maine Maryland
Massachusetts Michigan Minnesota Mississippi
Missouri Montana Nebraska Nevada
New Hampshire New Jersey New Mexico New York
North Carolina Ohio Oklahoma Oregon
Pennsylvania Rhode Island South Carolina South Dakota
Tennessee Texas Utah Vermont
Virginia Washington West Virginia Wisconsin
Wyoming

NH Divorce Statute

New Hampshire Divorce Statute
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.
VII. When either party is an habitual drunkard, and has been such for 2 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.

 

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) “Mediation” means a process in which a neutral third party facilitates settlement discussions between parties.
(b) “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.
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.
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.

 

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.
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.
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.

Source. 1987, 278:1. 2000, 178:1. 2004, 136:3, eff. May 19, 2004. 2019, 130:1, eff. Aug. 24, 2019.

 

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 30 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.
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) 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.

 

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.
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.

Source. 2018, 310:3, eff. Jan. 1, 2019.

 

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 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.

Source. 2018, 310:4, eff. Jan. 1, 2019.

 

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.

 

NOTE: I am not a lawyer. The information here is based on my personal research, observations and opinions, and laws can vary from state to state. You are responsible for checking the accuracy of any information you take from this site, and you alone are liable for your use of it.

Nancy Madore
Author and Founder of GoingProSe.com

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