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Dividing Property and Debt in Divorce

The property division process is an important aspect of divorce in New Hampshire. The outcome of this process may affect a spouse’s economic security for many years to come. Property division may be complex for families in virtually all circumstances and income brackets, including high-income spouses and those with financial limitations. Even if spouses have almost no assets to their name, they may still encounter challenges when dividing debt in a divorce. Various disputes may also arise when dividing property in divorce, whether these disputes involve six-figure properties or minor assets that may or may not represent a substantial proportion of the spouses’ personal wealth. To gain a more complete understanding of the property division process in New Hampshire, consider getting in touch with Friedman & Bresaw, PLLC. During an initial consultation, spouses can ask questions about their unique financial situations and receive targeted guidance from our experienced New Hampshire divorce attorneys. Call (603) 707-4800 to get started today. 

New Hampshire Is an Equitable Distribution State

According to the John W. King New Hampshire Law Library, New Hampshire follows a system of equitable distribution when it comes to property division during divorce. Under equitable distribution, family courts attempt to divide property in an equitable manner rather than simply splitting everything in a 50/50 manner. The result is intended to offer a more nuanced approach based on factors that the court considers relevant. 

Relevant Factors Considered During Equitable Distribution

Under Title XLIII of the New Hampshire Statutes there are a number of factors that family courts in New Hampshire may consider during the equitable distribution process:

  • How long the marriage lasted
  • The age of each spouse
  • The health of each spouse
  • The social or economic status of each spouse
  • The career status of each spouse (or lack thereof)
  • Any vocational skills held by each spouse
  • The general employability of each spouse
  • The separate property held by each spouse
  • The income of each spouse
  • Liabilities (debts) of each spouse
  • Probable future opportunities for each spouse to gain more assets and income
  • The ability of a custodial parent to engage in employment without affecting the needs of the children
  • The need of a custodial parent to occupy the family home in order to serve the best interests of the children
  • Any actions carried out by either spouse during the marriage that diminished the value of marital property
  • Any actions carried out by either spouse during the marriage that increased the value of marital property
  • Any disparities in contributions during the marriage, including contributions to the care of children or the management of the family home
  • Whether one spouse sacrificed their career or education in order to help the other spouse move forward with their own career or education, such as by taking on a primary role in the education or care of the children
  • Expectation of pension or retirement rights acquired prior to or during the marriage
  • Tax issues
  • Any prenuptial agreements made in good faith
  • Property acquired prior to the marriage
  • Inherited assets
  • Gifts received during the marriage by either spouse

In addition to all of these above factors, the court may also take into consideration the actions of either spouse, or of both spouses, that contributed to the breakdown of the marriage and consequent petition for divorce. Such considerations are typically treated under the category of “fault,” and may take a variety of forms, such as: 

  • Any fault that led the end of the marriage under RSA 458:7, including:
    • Impotency
    • Adultery
    • Extreme cruelty
    • Conviction of a serious crime
    • Domestic violence
    • Desertion/Abandonment
    • Substance abuse
  • Any fault that caused substantial physical injuries or pain and suffering
  • Any fault that led to economic loss to the marital estate

The New Hampshire family courts do enjoy considerable latitude for the exercise of their own discretion in such matters as the division of property during a divorce. For this reason, divorcing spouses are advised to keep in mind one final category of interest: namely, any other factor that the court deems relevant.

There May Be an Incentive To Prove Fault During Equitable Distribution

Factors relating to fault or misconduct during the marriage have the potential to influence the court’s decisions regarding the equitable distribution process in New Hampshire. A spouse who gambles away the family fortune may face a difficult challenging in convincing the court they have a right to half of whatever is left when it comes to the equitable distribution process. There may be a financial incentive for either spouse to prove the misconduct of their ex, with results that may sometimes lead to litigation rather than an uncontested divorce. Contact Friedman & Bresaw, PLLC to seek help in determining whether it may be beneficial to prove past misconduct that occurred during the marriage. 

Distinguishing Between Separate and Marital Property

New Hampshire courts draw a clear distinction between separate and marital property. Property considered “separate” is exempt from the property division process.

Separate Property

Separate property is not eligible for property division during a divorce. In other words, each spouse keeps any asset determined to be their separate property. Typical examples of separate property include:

  • Any property acquired prior to the marriage
  • Any property acquired after the date of separation
  • Any property acquired as a gift given by name to one spouse exclusively (not given to the couple)
  • Any property acquired through inheritance


Gifts and inheritance are always considered separate property, regardless of whether spouses acquired them during, after, or before their marriages. For all other forms of separate property, dates are important. The date of separation often becomes a crucial factor during the property division process, and is sometimes a source of dispute. In most cases, the date of separation is the day on which the spouses cease cohabitation. In other words, the date of separation is when one spouse moves out of the family home. 

Marital Property

Marital property generally includes all assets and debts acquired during the marriage. This category might include:

  • The family home
  • Retirement assets
  • Investments
  • Family businesses
  • Rental properties
  • The cash value of life insurance policies
  • Vehicles
  • Pets
  • Collectibles
  • Fine art
  • Jewelry
  • Precious metals
  • Furniture
  • Family heirlooms
  • Firearms

All marital property will be subject to the equitable distribution process during a divorce in New Hampshire. 

Commingled Assets

Commingled assets may be a potential third category spouses need to consider. Commingled assets contain both marital and separate property. In some cases, a spouse might use their inheritance funds (a separate asset) to put a down payment on real estate during the marriage (a marital asset). The resulting property becomes a commingled asset. These assets may be difficult to deal with during divorce, and spouses may need to work with forensic accountants to determine how they should be divided. 

Spouses May Divide Assets Outside of Court

Although family courts in New Hampshire divide assets according to a set of relevant factors and guidelines, spouses may divide their debts and assets according to their own wishes by pursuing uncontested divorces. If spouses avoid litigation, they are free to negotiate the terms of property division behind closed doors. This type of negotiation may provide spouses with a greater sense of control, and in amicable scenarios can lead to more favorable financial outcomes for both parties. New Hampshire divorce attorneys can help facilitate productive negotiations. 

Get In Touch With a New Hampshire Divorce Attorney Today

In New Hampshire, dividing property in divorce is inseparable from dividing debt in a divorce, as assets and liabilities are both allocated according to the principles of equitable distribution in order to ensure that both spouses receive their fair share of each. The allocation process can often be a complex undertaking for separating spouses ready to move on with their lives. While understanding the basic principles of equitable distribution exercised by New Hampshire courts can be helpful, individuals considering or preparing for divorce may also wish to visit with a New Hampshire family law attorney in their area who can offer advice and perspective based on extensive experience with the state courts. Book a consultation with Friedman & Bresaw, PLLC today to learn more about how the allocation of property in a New Hampshire divorce works and receive targeted guidance. Call (603) 707-4800 to get started. 


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About the Attorney
Jesse Friedman

Jesse has personally represented thousands of clients throughout the State - from juvenile delinquency offenses through homicides. He has extensive trial and litigation experience and has obtained favorable outcomes for thousands of clients throughout the years.

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