When a marriage is breaking down, it may make sense for one spouse to move out of the marital home to protect the physical or emotional health of family members. Such a move can be a first step toward counseling and possible reconciliation or, if the marriage can't be saved, toward filing for divorce. New clients often ask whether moving out in such circumstances might constitute abandonment or desertion, or otherwise place them at a disadvantage in divorce proceedings.
When two adults want to end their marriage in New Hampshire, the simplest approach is generally to file for divorce on the ground of "irreconcilable differences leading to an irremediable breakdown of the marriage". Commonly known as no-fault divorce, this is the stated legal basis for more than 90% of New Hampshire divorces. Indeed, either spouse acting alone can end a marriage this way, even if the other wants to keep the marriage intact. (For more on New Hampshire divorce law, see our New Hampshire Divorce and Family Law page.)
In no-fault divorce, negotiations among lawyers and their clients can often lead to a permanent agreement between the parties that forms the basis of the divorce. This kind of constructive problem solving with help from attorneys experienced in family law can avoid the cost, delay, and emotional trauma of a trial and preserve marital assets for the parties and their children.
No-fault divorce is a relatively modern development. Before no-fault divorce provisions were adopted in New Hampshire, getting a divorce was more complex -- and more difficult. One party had to prove the other was "at fault", while he or she was free from guilt. In those bad old days, attorneys often relied on grounds of desertion, abandonment, or "refusal to cohabit" as the fault underlying the divorce action. Since then, however, New Hampshire has eliminated abandonment as a fault ground in divorce.
Now that no-fault divorce is available, the main reason to seek divorce on a fault ground is the possibility that the court will agree to an unequal division of marital property (the marital home, savings, investments, and other assets). If fault is proven (or admitted), the "innocent" spouse may be entitled to a larger share. Still, proving a fault ground for divorce can be costly. Investigators and other professionals are often required, and a trial is usually needed to prove fault and establish that it was the reason why the marriage failed. So unless there are very substantial marital assets, proceeding on grounds of fault for the sake of a larger share would make little economic sense.
In certain cases, however, an attorney may advise a client to file on fault grounds if the client or the children appear to be at risk due to the behavior of the other spouse. If such behavior threatens the client's safety or relationship with the children, filing on fault grounds such as extreme cruelty can be an important first step toward securing custody and visitation arrangements that protect both the client and the children. These decisions are best made with the help of an attorney experienced in family law. An initial filing on fault grounds can be an important tactical tool, and as the case proceeds, the attorney may be able to negotiate a settlement that includes built-in safeguards for the client and the children.
Today, moving out of a marital home, particularly to a nearby location, does not constitute a fault ground of abandonment. Courts seem well aware that a move is often necessary to protect everyone involved and avoid fights. However, there are two important consequences to keep in mind: First, moving out of state with children raises serious legal issues and could lead to loss of custody. And second, the spouse who moves from a marital home could lose the right to remain in the home during or after the divorce, and might be required to pay the cost of maintaining the home during the divorce proceedings, if the spouse remaining there is unable to meet monthly expenses.