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New Hampshire Property Division
Property Distribution Laws in New Hampshire

In New Hampshire the courts generally accept a fair and reasonable property division the parties agree to, but if the parties cannot agree, the property is divided by the New Hampshire Court within the Judgment of Divorce. New Hampshire is an equitable distribution state, and all property in the marriage is considered for division and distribution. The increase in the value of property is marital.

When the parties are unable to reach a settlement, the Superior Court assigns a monetary value to the marital property and debt, and distributes the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, or even half, but rather what the Superior Court considers fair.

Factors in Equitable Distribution

According to the New Hampshire Statutes - Chapters: 458:16, the court, in making an equitable distribution of property, considers:

  • the length of the marriage;
  • the spouses’ ages, health, social or economic status, occupation, vocational skills, employability, separate property, amount and sources of income, and needs and liabilities;
  • the spouses’ opportunities for future acquisition of capital assets and income;
  • the ability of the custodial parent to engage in gainful employment without substantially interfering with the interests of any minor children;
  • the need of the custodial parent to live in the family home;
  • the actions of either spouse during marriage which contributed to growth or diminution in value of property;
  • the significant disparity between the parties in relation to contributions to the marriage, including contributions to the care and education of the children and care and management of the home;
  • the contributions by one spouse to educate or develop the career of the other and any interruption of a spouse’s education or career to benefit the other’s career, the marriage or children;
  • the expectation of pension or retirement rights acquired prior to or during the marriage;
  • the tax consequences;
  • the value of property that is allocated by prenuptial contract
  • a spouse’s fault in causing the marriage to fail if it also caused substantial physical or mental pain and suffering or resulted in substantial economic loss to the marital estate or other spouse;
  • the value of any property acquired prior to the marriage or in exchange for property acquired prior to the marriage
  • the value of property acquired by gift, devise, or descent, and
  • any other relevant factor.
Marital Property vs. Separate Property

In New Hampshire, the court presumes that everything a party owns – regardless of when he or she acquired it, who gave it to him or her and what the title says about ownership – is marital property to be divided equally. Common types of property divided during divorce are real property such as the family home, personal property like jewelry, and intangible property like income, retirement benefits, and debts.

At first, the court treats all assets and debts as marital property. Even, for example, the land acquired before the marriage, the education savings account set up for the children, or a spouse’s credit card debt is included. Then, if either spouse has a good reason why property should be divided unequally, he or she can make the argument.

In New Hampshire, courts listen to arguments that an unequal division is more equitable than an equal one. The court considers a comprehensive list of factors to shift the balance of property from one spouse to the other. However, the court accepts a fair and reasonable property division by the spouses. If the spouses think they can do a better job dividing property, the parties have opportunities to do so during the divorce.

Circumstances can also determine whether an unequal distribution is more equitable. For example, if the two spouses acquired sufficient property during the marriage that it is fair to leave the separate property of each out of the division, then that could be a basis to exclude property. Likewise, if one spouse racked up credit card debt while carrying on an adulterous affair, then that would also be a good reason for him or her to pay off that debt alone.

Valuing and Dividing Property

First, the court classifies assets and liabilities, property and debt, as marital or separate. Then it assigns a monetary value to the marital property and debt. Finally, it distributes the marital assets between the two parties in an equitable fashion.

The Marital Home

In New Hampshire as in many jurisdictions, the equity in the marital home is often one of the biggest assets the spouses divide. The equity is the market value of the house, less any debts or liens against it. Equity is established by determining what the current market value of the home is at the time of separation. Once the spouses agree to a current market value, any debts associated with the property (mortgage, taxes, home equity loans, etc.) are deducted from the market value to arrive at the equity to be divided. Normally, making this calculation requires a paid real estate appraisal or a real estate agent can prepare a market analysis for free.

From there, couples choose one of three options to divide the equity:

  • The spouses sell the home and divide the proceeds.
  • One of the parties may refinance the home and “buy out” the other party.
  • One spouse (usually the custodial parent) remains in the home with the exclusive use and possession for a certain period of time (for example, until the youngest child graduates from high school), then either buys out the other spouse or sells the home and divides the proceeds.

Pensions and Retirement Accounts

In New Hampshire vested pensions are marital property. A pension vests when all the requirements to receive the pension have been met. Unvested pensions are also marital property. Until the pension has vested, the person under whom the pension is maintained has only an expectancy of interest in the pension.

Several different methods of valuation are used in determining how much a marital asset is worth, depending upon the asset to be valued and the level of agreement between the parties. Courts generally accept the value when the spouses mutually agree on a value of a particular asset. Experts may be retained by the parties or by the courts to determine the value of marital assets if the parties cannot agree. Such experts may include accountants, real estate or business appraisers, or pension valuators. The use of experts adds to the cost of the divorce.

In New Hampshire the court may include the retirement benefits and plans earned by both spouses as marital assets available for division. Retirement benefits vary greatly but can generally be divided into two groups:

  • Defined Contribution Plans: A defined amount of money belonging to the employee. The employee and/or the employer make defined contributions. The balance of the plan is constantly changing, but its value is definable at any given point. 401(k)’s, 403(b)’s and profit sharing plans fall into this category.
  • Defined Benefit Plans: A retirement benefit where an employer promises to pay a benefit to an employee sometime in the future, based upon some type of formula. Normally, this formula is based on the employee’s salary near the end of his or her career and the number of years he or she worked for the employer before retirement. Defined benefit plans are much more complicated to value and often require the professional evaluation of an actuary to determine exact values.

In New Hampshire if spouses share in each other’s retirement or pension plan, a Qualified Domestic Relations Order must be completed. A QDRO is a written set of instructions that explains to a plan administrator that two parties are dividing pension benefits. The instructions set forth the terms and conditions of the distribution - how much of the benefits are to be paid to each party, when such benefits can be paid, and how such benefits should be paid.

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