New Hampshire Property Division FAQ's

1. What property is subject to division in a divorce?
Basically, all property, real or personal, tangible or intangible, whether held in one or both parties' names, is considered divisible property. Even such items as vested or non-vested pensions and property that one party owned before the marriage are susceptible to division in a divorce proceeding.

2. How does the Court determine what is equitable?
In dividing property in a divorce action, the court will presume that an equal division is equitable unless the particular circumstances of the marriage indicate otherwise. These particular circumstances include, for example, the length of the marriage, the fault of one party leading to the breakdown of the marriage, and the contribution of one party to the education and career of the other party. These are only a few of the factors considered in dividing property. Others that may apply to your particular situation and should be discussed prior to reaching agreement as to property settlement issues.

3. Who decides property division issues?
Often, the parties, with the advice and assistance of their attorneys, are able to reach an agreement as to property division. Of course, the parties must then submit this agreement to the court for approval. Unless there is some great disparity in the division suggesting undue influence or fraud by one party, the court is likely to approve such an agreement. In the event that no agreement can be reached, the court will hear both sides at a contested hearing and make a decision based upon all of the evidence presented.

4. Who will likely get the family residence?
If the couple has children it is likely the court would award the family residence to the party who will have custody of the children most of the time. Where the parties cannot afford to keep the house, the court may well order that the property be sold and the proceeds or deficiency divided.

5. Are there any ways to avoid court ordered division of property upon divorce?
A valid premarital agreement is a factor considered by the court in deviating from the presumption of a 50/50 split of property. A premarital agreement sets out the rights and obligations of each party to the marriage in the event of death or divorce. Such agreements are enforceable provided that there is no evidence of fraud, duress, mistake or misrepresentation, provided that the agreement is not unconscionable, and provided that the facts and circumstances of the parties have not significantly changed since the agreement was executed.

6. I am in the midst of a divorce action, can I still dispose of my property as I see fit?
Once a divorce action is filed, both spouses are restrained by the court from disposing, encumbering, concealing, or transferring any property that belongs to either or both spouses. Exceptions to this general rule include: a written agreement between the parties; disposal for the reasonable and necessary expenses of living; disposal in the ordinary and usual course of business or investing; and, by order of the court.

7. My divorce is final. Can the order pertaining to property settlement be modified?
Unless there are circumstances involving fraud, undue influence, deceit or misrepresentation, a property settlement order may not be modified. A change in the circumstances of one or both parties is not a basis for modification.