Divorce Fault Grounds (part 1 of 3)

Fault grounds are critical to the fair adjudication of some family law cases, providing monetary relief to aggrieved spouses in the form of disproportionate property divisions and alimony awards.  Fault grounds have long been available in New Hampshire.  In fact, New Hampshire required fault-based divorces until 1971, after which time divorces were permitted on the basis of irreconcilable differences.  At present, New Hampshire recognizes nine fault grounds, established by RSA 458:7, including: adultery, extreme cruelty, treatment to seriously injure health or endanger reason, habitual drunkenness, conviction of a crime punishable by incarceration of more than one year, impotency, desertion, abandonment and membership in a religious sect that declares marriage to be unlawful.  Each fault ground will be discussed herein.

Extreme Cruelty

The fault ground of extreme cruelty is available where physical violence was perpetrated by one spouse upon another.  In most cases, proof of extreme cruelty will require a course of conduct, meaning multiple instances of abusive conduct, rather than a single act.  However, as articulated by the New Hampshire Supreme Court “acts of physical violence need not be persistent, or become a fixed habit, or be many in number, before they can be said to constitute extreme cruelty.”  It should be noted that such bad behavior may also lead to criminal charges, domestic violence restraining orders and/or civil actions against a spouse or former spouse to recover damages for injuries occasioned by his/her abuse.

Treatment to Seriously Injure Health or Endanger Reason

Treatment to seriously injure health or endanger reason was enacted as a fault ground in 1840 to capture abusive conduct that fell short of the extreme cruelty fault ground and address the pain caused by abusive conduct.  The determination of whether fault will be found in a particular case depends upon the individual affected.  A divorcing party need only prove that he or she was actually adversely affected, not that a reasonable person under the circumstances would have been so affected.  Certain factors presented in combination with each other have met this standard, including: verbal abuse, physical abuse, being the target of alcoholic tirades, being the victim of an unfaithful spouse (in concert with other facts), fear, severe distress, nervousness, weight loss, and suffering the consequences of intimidation tactics, death threats or other unseemly behavior, such as urination on personal property.  However, mere feelings of anger, upset and distress, such as those suffered by one spouse upon learning that her husband was exchanging suggestive emails with his former girlfriend, have been found insufficient.  It should also be noted that proof of malicious intent or intent to cause harm is not required.  Expert testimony may be helpful, but is not necessarily required, to prove the fault ground of treatment to seriously injure health or endanger reason.


Adultery is the most commonly pled fault ground.  The fault ground of adultery is narrowly defined to include only voluntary sexual intercourse between a man and woman.  Consequently, the New Hampshire Supreme Court has explained that same-sex sex acts and acts that fall short of sexual intercourse do not constitute adultery.  Proof of the act is required to prevail on an adultery fault ground.  Circumstantial evidence is sufficient proof, but suspicion alone will not suffice.  In actions where the adultery fault ground has been asserted, the person with whom the party is accused of committing adultery will become a party to the case, as a co-respondent.  If the co-respondent lives in New Hampshire, he or she will be formally served with the court’s orders of notice.  If the co-respondent lives outside of New Hampshire, then the co-respondent will receive orders of notice by mail.

Habitual Drunkenness

Chronic alcoholism for a period of two years or more is a fault ground for divorce.  The New Hampshire Supreme Court declined the invitation to expand this fault ground to other intoxicants, such as prescription drugs.  It is unlikely that that this fault ground would be expanded to encompass illegal drugs, but the Supreme Court has yet to decide that issue.


Impotency is a fault ground for divorce.  The impotency fault ground requires that the condition be incurable and in existence at the time of the marriage.  However, the condition itself is not the fault ground.  As stated by the Court “the right to relief rests upon the ground of imposition and fraud.”  Mere misfortune, not occasioned by fault or fraud will not form the basis for a fault finding.  This fault ground is seldom, if ever, utilized.

Criminal Conviction and Imprisonment

A divorce will be allowed in favor of the innocent party upon the “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.”  The scope of this fault ground has been interpreted to include court-martial tribunals, even though the tribunal did not sit in New Hampshire, because the place of the conviction is not material to the statute.  It should be noted that RSA 458:6 requires the cause of all divorces, including all types of fault conduct, to wholly arise or accrue while the petitioner is domiciled in New Hampshire.


A party may pursue a divorce on a fault ground of desertion when a “party has been absent 2 years together, and has not been heard of.”  The desertion fault ground requires complete absence – not merely that the party not be heard from, but that the party not be heard of.  Testimony from friends and/or family members relating to the spousal desertion and lack of knowledge as to the spouse’s location are required elements of proof.  Communication between spouses and/or knowledge of location has been held sufficient to defeat this fault ground.  A party asserting the desertion fault ground must also contend with a legal relic dating back to the late 1800s.  The Supreme Court has interpreted the desertion fault ground to include an element of proof that the deserting party had the pecuniary ability, either through income or property, to provide support to the deserted spouse during his/her absence, but neglected to do so.


“When either party, without cause, and without consent of the other, has abandoned and refused, for 2 years together, to cohabit with the other,” the abandonment fault ground is available.  Abandonment does not require one spouse to lose contact with the other.  In fact, the basis for the fault ground of abandonment may accrue while the parties are separated, but live together in separate rooms of the same house.  The New Hampshire Supreme Court explained a result under such facts as follows: “the offense at which this [law] is aimed is the abandonment of the relation of husband and wife, not the abandonment of the house in which they were living as man and wife.”  An insanity exception to this fault ground has been established, wherein any period of insanity will hold the computation of the statutory period of abandonment in abeyance.

Religious Sect

If a party joins “any religious sect or society which professes to believe the relations of husband and wife unlawful, and [refuses] to cohabit with the other for six months together,” this fault ground is available.  Whether one or both parties are members of the group at some point is irrelevant.  This fault ground is seldom, if ever, utilized.

About the Author: Margaret Kerouac

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