2016 Developments In The Law About Adultery

     It used to be that the courts would consider most of what divorcing individuals did after the petition for divorce was filed, after they separated, had little impact on a its decision about property division and fault grounds (this never applied to parenting issues).  Adultery, for example, needed to have caused the breakdown in the marriage, and if the couple had already separated and filed for divorce, a subsequent new relationship was not relevant.  Not so fast, said the NH Supreme Court.

   Last year, the Court looked again at individual's behavior during the post filing period (that seemingly endless time between filing the petition for divorce and the final divorce decree) when it considered whether one party could claim adultery against the other party.  To claim adultery against your spouse, the law requires the "claimer," or wronged spouse, to be innocent of that behavior themselves.  You can not claim that your spouse committed adultery if you committed adultery yourself.  Now, that requirement even includes a new relationship begun after well after the petition for divorce is filed.

     In the Matter of Danielle Ross and Christopher Ross,  published August 23, 2016, the NH Supreme Court upheld the trial court's decision to dismiss Mr. Ross's claim for adultery against his wife because he became involved in a relationship 11 months after his wife filed a petition for divorce.  The Court determined that he was no longer an "innocent" spouse, as required by statute.

     The takeaway is that, until you are divorced, you are still married.  I am seeing more and more decisions that take post separation actions into account for dividing property, alimony and fault.