Disclaimer: BS Kids LLC legal research and information has been prepared for educational and informational purposes only. This material is not
legal advice or legal opinions on any specific matters. Transmission of the information is not intended to create and receipt does not constitute a
lawyer-client relationship between BS Kids LLC , the author of the information and any other legal publisher. Customers of BS Kids should not act
upon this information without seeking professional counsel. The opinions expressed in the material presented to BS Kids clientele is based on
information found in legal publications. BS Kids LLC, 78 Canterberry Court, Hudson, NH 03051 781-756-1214.
legal advice or legal opinions on any specific matters. Transmission of the information is not intended to create and receipt does not constitute a
lawyer-client relationship between BS Kids LLC , the author of the information and any other legal publisher. Customers of BS Kids should not act
upon this information without seeking professional counsel. The opinions expressed in the material presented to BS Kids clientele is based on
information found in legal publications. BS Kids LLC, 78 Canterberry Court, Hudson, NH 03051 781-756-1214.
A Child Advocacy Company
Bringing Support to Parents
Building Strength to Children
Bringing Support to Parents
Building Strength to Children
News
E-mails fall short for fault-based divorce
By NANCY WEST
New Hampshire Sunday News
If you're seeking a fault-based divorce in New Hampshire, you'd better have more than sexually suggestive
e-mails and hurt feelings on which to base your case.
That's the message the state Supreme Court sent in a March 5 ruling that set a standard for finding one
spouse at fault. The ruling may affect future divorces involving a claim that one spouse caused what state
law describes as "serious injury to health or endangered reason" to the other, one of nine grounds for
fault-based divorce in New Hampshire.
"The decision raised the bar. It's got to be serious injury, not just hurt feelings," said Nashua attorney
William Aivalikles, who represented Daniel R. Guy's appeal of the divorce filed by his wife, Joni Guy.
Joni Guy claimed sexually suggestive e-mails Mr. Guy exchanged with a former girlfriend caused Mrs. Guy
to be "angry, upset and distraught," according to court documents.
Senior Associate Justice Linda S. Dalianis, citing previous cases, said Mrs. Guy's claim was based on an
1840 law that allowed divorce when the claim didn't meet the standard for legal cruelty but the conduct
"might make life intolerable and death welcome."
Being "angry, upset and distraught" isn't enough to meet that standard, Dalianis wrote, citing similar past
cases that involved constant drunken abuse by domineering husbands, including a threat of murder. In
each of those cases, the behavior caused some effect to the "innocent" party, such as becoming highly
nervous, losing weight or undergoing counseling, Dalianis wrote.
Grounds for divorce in NH
The vast majority of N.H. divorces are no-fault, based on irreconcilable differences. The most often cited
grounds in fault-based divorces are shown here:
2000 2004 2008
Total divorces 5,970 5,106 4,913
Irreconcilable differences 5,920 5,042 4,847
Top Three fault-based:
Adultery 26 19 27
Extreme cruelty 7 9 9
Abandonment 2 1 10
Source: N.H. Division of Vital Records Administration
"This kind of effect upon (Mrs. Guy's) physical and mental health is insufficient, as a matter of law, to
sustain a divorce. ... In cases involving a divorce upon these grounds, the effect upon the 'innocent'
spouse has been much more severe than mere anger and upset and the conduct in which the 'guilty'
spouse engaged was more brutal than merely e-mailing his former girlfriend," Dalianis wrote in the
unanimous decision.
Few fault-based divorces
Only about 1.3 percent of all New Hampshire divorces last year were completed as fault-based, according
to the state Division of Vital Records. There were 4,913 divorces last year, and 4,847 of them were no-
fault divorces based on irreconcilable differences.
In 2007, the most recent year for which the National Center for Health Statistics has divorce figures, New
Hampshire's divorce rate was 3.8 per 1,000 of the state's total population. That's about the same as the
national average, 3.6 per 1,000, although not all states report, according to the NCHS.
Experts estimate between 5 and 10 percent of divorces are filed as fault-based, but fewer than 2 percent
are granted, according to the state Division of Vital Records. Before no-fault divorce became part of New
Hampshire law in 1971, a finding of fault was required to dissolve a marriage here, Aivalikles said.
Property settlement
In fault-based divorces, marital assets can be divided to favor the "innocent" party, Aivalikles said.
In the Guy divorce, the original property settlement, which was partially based on Mr. Guy's fault, was
vacated in the Supreme Court's ruling. Mr. Guy is expected to get an additional $56,000 as a result,
Aivalikles said.David Forrest, the marital master who heard the divorce, had recommended the fault-based
grounds and the recommendation was approved by Judge William Groff. The trial court dismissed Mrs.
Guy's 2007 fault claims of habitual drunkenness and adultery against her husband of 18 years.
'Fault' divorce
While the vast majority of divorces in New Hampshire are no-fault divorces based on irreconcilable
differences, it is still possible to obtain a fault-based divorce that may mean the "innocent" spouse would
be treated more favorably in the division of marital assets. Fault-based divorces can be obtained on the
following grounds involving either party:
• Impotency
• Adultery
• Extreme cruelty
• Imprisonment of more than one year for conviction of a crime
• Abuse by one party causing serious physical or mental injury to the other
• Absence for two consecutive years with no communication
• Habitual drunkenness during a period of two consecutive years
• Membership in a religious sect or society that professes the relationship of husband and wife is
unlawful, and corresponding refusal to cohabit for six months
• Abandonment and refusal to cohabit during a period of two consecutive years.
Source: New Hampshire RSA 458:7
"It's safe to say my wife believed a lot of things that turned out to be untrue," said Mr. Guy, who added that
he neither has a drinking problem nor committed adultery. The ruling will likely mean Daniel Guy, a disc
jockey and broadcast engineer, gets to keep at least half of his $112,000 inheritance, which was an issue
in the settlement, he said. "(Justice Dalianis) took more of a common-sense approach to my case. Finding
fault was just a stretch," Mr. Guy said. Joni Guy couldn't be reached for comment, and her attorney,
Francis Holland of Nashua, didn't return phone calls to the New Hampshire Sunday News.
Alternatives to litigation Wilton lawyer Honey Hastings said she changed her practice four years ago after a
troubling case involving sexually graphic testimony. Hastings, who wrote "The New Hampshire Divorce
Handbook," said, "I don't litigate anymore. I felt it was enabling people to treat each other badly and hurt
children." She offers services to families, including mediation and collaborative practice, also called "no-
court divorce."
Attorney Amy Wolfson of Nashua said fault-based divorces might lead to unequal division of assets,
alimony and increased alimony, and may affect parenting rights and responsibilities. Depending on how
outrageous the fault, Wolfson said, the asset split could be 55-45, 60-40 or whatever the judge decides. In
one of her cases, she said, her client walked away with 90 percent of the marital assets, though she said
such cases are "extraordinary." Mediation isn't always the best option in divorce cases, Wolfson said.
"Mediation works well when both parties are of equal bargaining power," she said. "When you have power
disparity in the marriage, it doesn't work well." Randy Kessler, secretary of the Family Law Section of the
American Bar Association, said New Hampshire is in the mainstream, as about 25 states have both fault
and no-fault divorces. Seventeen states have no-fault only, and eight states have fault-based divorces
only, he said.
Even if fault isn't alleged in a divorce suit, Kessler said, fault may be found and used as leverage in
reaching a favorable settlement for the injured party. Fault also can be relevant in deciding settlements
and child-custody arrangements, he said.
By NANCY WEST
New Hampshire Sunday News
If you're seeking a fault-based divorce in New Hampshire, you'd better have more than sexually suggestive
e-mails and hurt feelings on which to base your case.
That's the message the state Supreme Court sent in a March 5 ruling that set a standard for finding one
spouse at fault. The ruling may affect future divorces involving a claim that one spouse caused what state
law describes as "serious injury to health or endangered reason" to the other, one of nine grounds for
fault-based divorce in New Hampshire.
"The decision raised the bar. It's got to be serious injury, not just hurt feelings," said Nashua attorney
William Aivalikles, who represented Daniel R. Guy's appeal of the divorce filed by his wife, Joni Guy.
Joni Guy claimed sexually suggestive e-mails Mr. Guy exchanged with a former girlfriend caused Mrs. Guy
to be "angry, upset and distraught," according to court documents.
Senior Associate Justice Linda S. Dalianis, citing previous cases, said Mrs. Guy's claim was based on an
1840 law that allowed divorce when the claim didn't meet the standard for legal cruelty but the conduct
"might make life intolerable and death welcome."
Being "angry, upset and distraught" isn't enough to meet that standard, Dalianis wrote, citing similar past
cases that involved constant drunken abuse by domineering husbands, including a threat of murder. In
each of those cases, the behavior caused some effect to the "innocent" party, such as becoming highly
nervous, losing weight or undergoing counseling, Dalianis wrote.
Grounds for divorce in NH
The vast majority of N.H. divorces are no-fault, based on irreconcilable differences. The most often cited
grounds in fault-based divorces are shown here:
2000 2004 2008
Total divorces 5,970 5,106 4,913
Irreconcilable differences 5,920 5,042 4,847
Top Three fault-based:
Adultery 26 19 27
Extreme cruelty 7 9 9
Abandonment 2 1 10
Source: N.H. Division of Vital Records Administration
"This kind of effect upon (Mrs. Guy's) physical and mental health is insufficient, as a matter of law, to
sustain a divorce. ... In cases involving a divorce upon these grounds, the effect upon the 'innocent'
spouse has been much more severe than mere anger and upset and the conduct in which the 'guilty'
spouse engaged was more brutal than merely e-mailing his former girlfriend," Dalianis wrote in the
unanimous decision.
Few fault-based divorces
Only about 1.3 percent of all New Hampshire divorces last year were completed as fault-based, according
to the state Division of Vital Records. There were 4,913 divorces last year, and 4,847 of them were no-
fault divorces based on irreconcilable differences.
In 2007, the most recent year for which the National Center for Health Statistics has divorce figures, New
Hampshire's divorce rate was 3.8 per 1,000 of the state's total population. That's about the same as the
national average, 3.6 per 1,000, although not all states report, according to the NCHS.
Experts estimate between 5 and 10 percent of divorces are filed as fault-based, but fewer than 2 percent
are granted, according to the state Division of Vital Records. Before no-fault divorce became part of New
Hampshire law in 1971, a finding of fault was required to dissolve a marriage here, Aivalikles said.
Property settlement
In fault-based divorces, marital assets can be divided to favor the "innocent" party, Aivalikles said.
In the Guy divorce, the original property settlement, which was partially based on Mr. Guy's fault, was
vacated in the Supreme Court's ruling. Mr. Guy is expected to get an additional $56,000 as a result,
Aivalikles said.David Forrest, the marital master who heard the divorce, had recommended the fault-based
grounds and the recommendation was approved by Judge William Groff. The trial court dismissed Mrs.
Guy's 2007 fault claims of habitual drunkenness and adultery against her husband of 18 years.
'Fault' divorce
While the vast majority of divorces in New Hampshire are no-fault divorces based on irreconcilable
differences, it is still possible to obtain a fault-based divorce that may mean the "innocent" spouse would
be treated more favorably in the division of marital assets. Fault-based divorces can be obtained on the
following grounds involving either party:
• Impotency
• Adultery
• Extreme cruelty
• Imprisonment of more than one year for conviction of a crime
• Abuse by one party causing serious physical or mental injury to the other
• Absence for two consecutive years with no communication
• Habitual drunkenness during a period of two consecutive years
• Membership in a religious sect or society that professes the relationship of husband and wife is
unlawful, and corresponding refusal to cohabit for six months
• Abandonment and refusal to cohabit during a period of two consecutive years.
Source: New Hampshire RSA 458:7
"It's safe to say my wife believed a lot of things that turned out to be untrue," said Mr. Guy, who added that
he neither has a drinking problem nor committed adultery. The ruling will likely mean Daniel Guy, a disc
jockey and broadcast engineer, gets to keep at least half of his $112,000 inheritance, which was an issue
in the settlement, he said. "(Justice Dalianis) took more of a common-sense approach to my case. Finding
fault was just a stretch," Mr. Guy said. Joni Guy couldn't be reached for comment, and her attorney,
Francis Holland of Nashua, didn't return phone calls to the New Hampshire Sunday News.
Alternatives to litigation Wilton lawyer Honey Hastings said she changed her practice four years ago after a
troubling case involving sexually graphic testimony. Hastings, who wrote "The New Hampshire Divorce
Handbook," said, "I don't litigate anymore. I felt it was enabling people to treat each other badly and hurt
children." She offers services to families, including mediation and collaborative practice, also called "no-
court divorce."
Attorney Amy Wolfson of Nashua said fault-based divorces might lead to unequal division of assets,
alimony and increased alimony, and may affect parenting rights and responsibilities. Depending on how
outrageous the fault, Wolfson said, the asset split could be 55-45, 60-40 or whatever the judge decides. In
one of her cases, she said, her client walked away with 90 percent of the marital assets, though she said
such cases are "extraordinary." Mediation isn't always the best option in divorce cases, Wolfson said.
"Mediation works well when both parties are of equal bargaining power," she said. "When you have power
disparity in the marriage, it doesn't work well." Randy Kessler, secretary of the Family Law Section of the
American Bar Association, said New Hampshire is in the mainstream, as about 25 states have both fault
and no-fault divorces. Seventeen states have no-fault only, and eight states have fault-based divorces
only, he said.
Even if fault isn't alleged in a divorce suit, Kessler said, fault may be found and used as leverage in
reaching a favorable settlement for the injured party. Fault also can be relevant in deciding settlements
and child-custody arrangements, he said.
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |