What Property is Marital and Subject to Division?
Determining what property is marital property is the first step in the property division process. In New Hampshire, the law is unequivocal: nearly all assets fall under the umbrella of the marital estate. This encompasses property held solely in one spouse’s name, assets acquired through gifts or inheritance, and retirement plans such as 401(k)’s and pensions. While there may be rare exceptions involving third-party-owned property or assets held in trust, in the majority of cases, almost all property is considered part of the marital estate.
In New Hampshire, when it comes to dividing property in a divorce, there are more than 17 factors (458:16-a Property Settlement) that can make a difference one way or the other. The court will listen to arguments about these factors and decides if one person should get more marital assets than the other. It’s important to know that in New Hampshire, judges have a great amount of discretion in determining how property is divided. There are no fixed rules about how important each factor is or how much it can change the initial 50/50 starting point. Property division is one of the times having an experienced divorce lawyer really pays off. The stakes are high and the arguments made before the judge are absolutely critical.
Factors that Determine Property Division in New Hampshire
The Duration of the Marriage
The duration of the marriage plays a significant role in property division during divorce. Generally, longer marriages may result in a more equitable distribution of marital assets, as the contributions and shared financial history of the spouses over a extended period are considered. Shorter marriages may lead to a more straightforward property division process with a focus on returning each party to their individual pre-marital financial positions.
The age, health, social or economic status, occupation, vocational skills, employability, separate property, amount and sources of income, needs and liabilities of each party
Property division during divorce is influenced by several factors related to the spouses’ individual circumstances. These factors include their age, health, social and economic status, occupation, vocational skills, and employability. Additionally, the court considers each party’s separate property, the amount and sources of their income, as well as their respective needs and liabilities. All these elements are carefully examined to ensure a fair and equitable distribution of assets and liabilities in accordance with the specific circumstances of the divorcing couple.
The opportunity of each party for future acquisition of capital assets and income
Property division during divorce also takes into account the future financial prospects of each party. This includes assessing their opportunities for acquiring capital assets and income after the divorce. The court considers factors such as potential for career advancement, education and training, and other opportunities that may impact their financial stability in the years to come. This consideration ensures that the property division is not only fair in the present but also takes into account the parties’ long-term financial well-being.
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
In cases involving a custodial parent, property division during divorce considers the custodial parent’s ability to engage in gainful employment without significantly disrupting the welfare and interests of any minor children under their care. The court takes into account the importance of maintaining stability and support for the children when evaluating the custodial parent’s potential for employment. This factor ensures that the property division decision aligns with the best interests of the children involved while also addressing the financial circumstances of both spouses.
The need of the custodial parent, if any, to occupy or own the marital residence and to use or own its household effects
The custodial parent’s need to reside in and own the marital home, as well as the household possessions. This factor acknowledges the importance of providing stability and a suitable living environment for any children in the custody of the custodial parent, often leading to them retaining possession of the marital home and its contents. The court aims to balance the custodial parent’s housing needs with the overall property division process to ensure the best interests of the children are met.
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
Property division during divorce is influenced by the actions of both spouses during the marriage that either contributed to the growth or decrease in the value of their assets. This means that if one spouse significantly contributed to the increase in the value of certain properties or assets, they may be entitled to a fair share of that appreciation. Conversely, actions that led to the depreciation of marital assets may also be considered in the property division process, ensuring that each party’s contributions are fairly assessed.
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
Property division during divorce takes into account any significant disparity between the spouses concerning their contributions to the marriage. This includes contributions to the care and education of the children, as well as the management of the household. A spouse who made substantial contributions in these areas may be entitled to a more equitable share of marital assets to recognize their efforts in supporting the family and home life during the marriage. This factor ensures a fair distribution of property that reflects the respective contributions of each spouse to the marriage.
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
A court will considers any direct or indirect contributions made by one spouse to support the education or career development of the other. This includes instances where one spouse may have sacrificed their own educational or career opportunities for the betterment of the other spouse’s career or the family as a whole. Such contributions are weighed in the property division process to ensure fairness and recognition of the sacrifices made to benefit the marriage and the family’s future prospects.
The expectation of pension or retirement rights acquired prior to or during the marriage
A court will take into account the expectation of pension or retirement rights that were acquired by either spouse before or during the marriage. This means that if one spouse has accumulated pension or retirement benefits, they may be subject to division, ensuring that both parties receive a fair share of these assets, even if they were primarily earned by one spouse. This factor aims to maintain financial equity by recognizing the value of such rights in the overall property division process.
The tax consequences for each party
This means that the court takes into account how the division of assets may impact the tax liabilities of both spouses. It aims to achieve a fair and equitable distribution while minimizing any adverse tax implications, ensuring that both parties can maintain their financial well-being after the divorce with a clear understanding of their tax obligations.
The value of property that is allocated by a valid prenuptial contract made in good faith by the parties
Assets specified and agreed upon in a prenuptial agreement will generally be distributed according to the terms of that contract, provided it was executed genuinely and fairly. The court respects the parties’ intentions as outlined in the prenuptial agreement while ensuring it aligns with legal standards and principles.
The fault of either party if said fault caused the breakdown of the marriage
Fault-based factors, such as infidelity or cruelty, can influence the property division process. However, New Hampshire is a no-fault divorce state, so the court primarily focuses on equitable distribution of property, and fault is just one element among many that may be considered. The court aims to ensure a fair and just property division while taking into account the reasons for the marriage’s dissolution.
The value of any property acquired prior to the marriage and property acquired in exchange for property acquired prior to the marriage.
This ensures that assets brought into the marriage by either spouse are generally considered separate property and may be awarded to the original owner. However, any increase in value of these separate assets during the marriage may be subject to equitable distribution.
The value of any property acquired by gift, devise, or descent
These assets, which are typically received through inheritance or as gifts, are generally not be subject to division in the divorce. However, any increase in value of these assets during the marriage may be subject to equitable distribution. This factor makes it possible for property acquired independently of the marriage to remains with the respective owner.
Any other factor that the court deems relevant
Property division during divorce is not limited to specific factors and includes any other factor that the court deems relevant. This catch-all provision allows the court to consider unique circumstances and additional factors that may impact the equitable distribution of assets, ensuring a fair and just outcome based on the specific details of each case. It provides the flexibility needed to address complex and individualized situations that may not be covered by the predefined factors in the statute.