NH Law About... Property Division

Introduction to... Property Division

Updated May 23, 2017. 

This topic usually comes up at the law library as the question "is New Hampshire a community property state?" referring to the division, or distribution, of property in divorces. The answer is, no, it isn't; New Hampshire is an “equitable division” state. New Hampshire RSA 458:16-a II says that during a divorce, the court may order an equitable division of property between spouses. "Equitable" does not necessarily mean "equal." The court may presume that an equal division is an equitable distribution of property, but the court may decide instead that an equitable division would not be appropriate and may divide property in another way based on many factors listed in the statute. Those factors include the duration of the marriage, the age, social or economic status of each party, the occupation and ability of the custodial parent to also be employed, fault of either party leading to the breakdown of the marriage, and “any other factor that the court deems relevant.” (RSA 458:16-a II (o). RSA 458:16-a IV also requires the court to give written reasons for the division of property which it orders.

The Wikipedia link given below provides a short introductory discussion of equitable distribution law.  For New Hampshire sources, Chapter 19, “Property Division” of the Douglas book referenced below and chapter 8, “Division of the Marital Estate” of the Papelian book have excellent discussions of equitable distribution in New Hampshire divorces. See also Equitable Divorce Settlements. Since Equitable Divorce Settlements was published in 2007, be sure to update the statutory and case law references, but the book is still useful and contains a thorough discussion of the principles of equitable division. On related topics, see Prenuptial & Postnuptial Agreements in New Hampshire ~ 2015. 

Please remember that this guide is for information purposes only and is not comprehensive. It is intended as a starting point for research, to illustrate the various sources of the law, and to provide guidance in their use. All references should be checked to make sure they are current. NH Law About ...  is not a substitute for the services of an attorney.  


Read about... Property Division

WEBSITES

Circuit Court Family Division. Service Center  GO>

Link verified on: May 23, 2017

Wikipedia. Division of property  GO>

Link verified on: May 23, 2017


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Equitable divorce settlements / Michael L. Alfano. National Business Institute, c2007

Understanding the principles of equitable distribution -- Valuation issues in divorce -- Ethical considerations in divorce -- How to avoid common tax mistakes in divorce settlements -- Strategies in equitable distribution settlements.   GO>

Link verified on: May 23, 2017

Family law / by Charles G. Douglas. New Providence, N.J. : LexisNexis, 2014. 4th ed.   GO>

Link verified on: May 23, 2017

A practical guide to divorce in New Hampshire / editor, Jeanmarie Papelian ; marital masters, Robert J. Foley ... [et al.] ; authors, Michael L. Alfano ... [et al.]. Boston, MA : MCLE Ne  GO>

Link verified on: May 23, 2017

Prenuptial & postnuptial agreements in New Hampshire, 2015. New Hampshire Bar Association, [2015]

A historical perspective on prenuptial and postnuptial agreements -- Prenuptial agreements : enforceability according to New Hampshire statutory & case law -- Prenuptial and postnuptial agreements : procedure considerations, notice and opportunity to negotiate, importance of disclosures -- Required/recommended, prohibited and discretionary sections in prenuptial agreements -- Postnuptial agreements : a new frontier in the world of marital contracts -- Estate planning in contemplation of divorce -- Ethical considerations in drafting and negotiating prenuptial & postnuptial agreements -- Litigation : attacking and defending a prenuptial agreement   GO>

Link verified on: May 23, 2017

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Read the law about... Property Division

NEW HAMPSHIRE STATUTES

RSA 458. Annulment, Divorce and Separation  GO>

Link verified on: May 23, 2017

Find it in a Library ... New Hampshire Revised Statutes Annotated

Link verified on: July 21, 2017

Find the New Hampshire statutes in print at libraries throughout the state.   GO>

Learn About New Hampshire Statutes: New Hampshire statutes are the laws of the State of New Hampshire as enacted by the New Hampshire General Court. GO>
 

NEW HAMPSHIRE CASES

136 N.H. 757 (1993). Magrauth v. Magrauth

Link verified on: May 23, 2017

RSA 458:16-a, II provides that if the court is to order a division of property upon the decree of divorce, the distribution must be equitable. The statute incorporates our decisions which have held that an equal division of property is presumed to be equitable, unless the court finds that certain factors would make an unequal division equitable. … Consistent with our case law, the statute gives the court broad, but not unlimited, discretion in the division of marital property. In recent years, this court has suggested factors which may properly be considered in the evaluation and division of marital assets. The statute embodies these considerations. … The trial court should make an equitable distribution after considering the parties' property in its entirety and special circumstances recognized by this court [and set forth in RSA 458:16-a, II] as bearing on just division. However, in the absence of any such special circumstances the distribution should be as equal as the court can make it. Regardless of its ultimate decision, the court must specify written reasons for the division of property which it orders. This requirement expands our earlier case law, which required written reasons only when the division was unequal.   GO>

146 N.H. 119 (2001). In re Jones

Link verified on: May 23, 2017

In a divorce action, the trial court has broad discretion in determining an equitable distribution of the marital estate. Absent an abuse of discretion, we will not overturn the decision of the trial court in matters involving alimony and property distribution. … A trial court may determine that equity requires an unequal distribution of marital property. The trial court's efforts to avoid future conflicts between the parties by eliminating joint ownership of the marital business and awarding it to the defendant, justified the award of greater shares of other portions of the marital estate to the plaintiff. The trial court made specific findings supported by the record in each of the provisions of the divorce decree now contested by the defendant. Accordingly, we find no abuse of discretion in its award of alimony and marital property.   GO>

148 N.H. 218 (2002). In re Crowe

Link verified on: May 23, 2017

RSA 458:16–a, I (Supp.2001) defines property as “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.” The statute does not classify property based upon when or by whom it was acquired, but rather assumes that all property is susceptible to division. RSA 458:16–a, II (Supp.2001) creates a presumption that an equal distribution of marital property is equitable, absent special circumstances. The statute enumerates various factors for the court to consider, such as the length of the marriage, the ability of the parties to provide for their own needs, the needs of the custodial parent, the contribution of each party during the marriage and the value of property contributed by each party. Under the statute, the court need not consider all factors or give them equal weight. … A marriage of only one or two years may be considered differently from a long-term marriage of ten, twenty or thirty years. In a short-term marriage, it may be easier to give back property brought to the marriage and still leave the parties in no worse position than they were in prior to it. Still, the length of the marriage and the contributions of each party are but two factors for the court to consider in fashioning an equitable division of assets.   GO>

155 N.H. 13 (2007). In re Chamberlin

Link verified on: May 23, 2017

We now adopt, as herein modified, [a] two-step analysis … under which the trial court first determines, as a matter of law, what assets are marital property under RSA 458:16-a, I, and thus subject to equitable distribution, and then exercises its discretion to make an equitable distribution of those assets. Trial court determinations under RSA 458:16-a, I, are reviewed de novo, while equitable divisions of property pursuant to RSA 458:16-a, II are reviewed for an unsustainable exercise of discretion. Finally, we note that while determining whether or not a particular asset is marital property under the statute is normally a question of law, determining the value of any given asset is left to the sound discretion of the trial court.   GO>

169 N.H. 274 (2016). Matter of Munson

Link verified on: May 23, 2017

We ... hold that premarital cohabitation is a factor that the court may consider in divorce proceedings when determining whether to depart from the presumption that “an equal division is an equitable distribution of property." ... Here, the trial court found that, prior to entering into a civil union, the parties had lived together since 1993; “shared a joint account into which most of [their] funds were deposited and out of which the bills were paid”; “obtained personal property, decorated the home and acquired additional debt”; and filed with Munson's employer two “Affidavit[s] of Life Partnership ... to establish their rights as a couple”; among other things. However, the court apparently ignored these findings when it decided to depart from the statutory presumption, which suggests that it believed that it had no discretion to consider them. Although, until now, we have not expressly held that premarital cohabitation may be considered a factor under RSA 458:16–a, II, we conclude that, by not taking these findings into account, the court did not exercise the full breadth of its discretion under the statute.   GO>

Find it in a Library ... New Hampshire Reports

Link verified on: July 21, 2017

Find the New Hampshire Reports in libraries throughout the state.   GO>

Learn About New Hampshire Cases: New Hampshire case law consists of the published opinions of the New Hampshire Supreme Court. GO>
 

NEW HAMPSHIRE COURT RULES

Circuit Court. Family Division. Domestic Relations Rules  GO>

Link verified on: May 23, 2017

Learn About New Hampshire Court Rules: Follow this link to learn how to search court rules online as well as what court rules are and how they're published. GO>
 

FOR MORE HELP ...

New Hampshire Law Library

Link verified on: September 22, 2017

The state's only public law library. Call, email, or visit, we'll be happy to help.   GO>

LawLine

Link verified on: July 28, 2017

Volunteer attorneys are available to answer legal questions through LawLine, a free service of the NH Bar Association. LawLine is held on the SECOND Wednesday of each month from 6:00 p.m. ~ 8:00 p.m. To reach LawLine, call (toll free) 800-868-1212.   GO>

U.S. Internal Revenue Service Manual. Community Property  GO>

Link verified on: May 23, 2017

Wikipedia. Community property  GO>

Link verified on: May 23, 2017


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