According to New Hampshire law, you can get a legal separation from your spouse, which is also known as a limited divorce. This lets you live apart permanently from your spouse. While some states have a limit on the duration of legal separation which requires either reconciliation or divorce after a certain period of time, there is no such restriction in New Hampshire and your spouse and you can remain legally separated indefinitely.
In the case of legal separation in New Hampshire, you and your spouse remain married and you cannot remarry another person. Also, the wife cannot reclaim her maiden name. Couples may decide to opt for legal separation rather than divorce although both are very similar for various reasons such as religious or social reasons, or they may feel like they are not ready for a divorce or they want to stay married for the sake of their children.
Sometimes, after a legal separation, you may find that your relationship with your spouse has improved and you decide to live together once more. You can resume your marital relations with your spouse at any time without requiring any kind of legal notice or paperwork. Once the marital relations have been resumed any court orders and decrees related to the legal separation will be null and void, except for the decrees pertaining to the property division.
Legal Separation vs Divorce
Married couples may decide to opt to separate legally for several reasons. Separation is when the couple decides to live apart and do not share a home with one another. Some couples may decide to separate for a few weeks and then reconcile and move ahead with their marriage, while others may live separately for many years before they decide to get a divorce.
Couples may decide to separate as an informal agreement where both spouses live apart for an indefinite period of time. Such types of informal separations are not legally binding and do not have any impact on your case. A legal separation is one that is formalized by the court, where the judge will issue separation orders which can have its advantages if your spouse and you decide to file for divorce in the future.
New Hampshire is among the few states in the US which recognize legal separation. The action of separation proceeds in a similar manner to divorce and also resolving the issues pertaining to property division, child custody and support. According to the New Hampshire law, a legal separation can be converted into a divorce by just filing an action to modify the separation decree.
The only difference between divorce and legal separation is permanency. A divorce ends your marriage permanently and once you are divorced, you can remarry and any property or assets acquired by you will be considered as separate property.
During a legal separation, there are many financial and other restrictions; however, separation offers many advantages. It allows you to plan and reach an agreement and the separation period can also help you reconcile with your spouse. As per the New Hampshire law, the judge can order couples to attend a counseling session if they are likely to reconcile. Legal separation also offers financial benefits to couples, which may end if the couple divorces.
Grounds for Legal Separation
In New Hampshire, either you or your spouse can file a petition for legal separation. And, legal separations can be sought on “no-fault” or “fault-based” grounds just like in a divorce. The no-fault ground for legal separation is “irremediable breakdown of the marriage” due to “irreconcilable differences” between your spouse and you.
And, the “fault-based grounds” are:
- Extreme cruelty
- Imprisonment of a spouse for more than 1 year
- Desertion for up to a period of 2 years
- Habitual drinking
- Treatment of either spouse of the other so as to injure his/her health
- Refusal of a spouse to cohabit with the other spouse for 6 months
Procedure of Legal Separation in New Hampshire
Below are the steps that must be followed to file for legal separation in New Hampshire.
Step 1: Completing the Forms
In New Hampshire, you can file for legal separation in the same way that you file for divorce. The spouse filing the petition for a legal separation must have either been a resident of the state for a minimum period of at least 1 year or the cause for the couple to legally separate should have arisen in the state and at least one spouse should be living in New Hampshire when the petition for legal separation is filed. Often, the documents for legal separation are used to start the divorce proceedings in the future.
Step 2: Filing and Service of the Papers
The process of filing for legal separation depends on whether your spouse and you agree on the major issues. If you agree on all the issues, then you can file a joint petition, which eliminates the requirement for service of the papers. However, if your spouse and you are unable to agree on the issues, then the petition must be served on your spouse either by certified mail or by the sheriff.
Step 3: Resolving Various Issues
Once the legal separation petition has been filed and served properly, then the judge will schedule a hearing at the request of either spouse. The judge will assess the various factors such as property, assets, income, debts, children, health and age of each spouse at the hearing. And, even if one spouse objects, the court will grant a legal separation.
Usually, the judge will not put a time limit on the legal separation orders. However, the New Hampshire law requires that the couples who are not living in separate residences any longer or if they have resumed their marital relations to report the same to the court. And, when the separation ends, any child custody, child support, spousal support and restraining orders will also end. However, the reconciliation between both spouses will not affect the property division made in the separation order. This will remain until the court takes a decision on the same.
The legal separation orders must settle all the issues that will be decided in a divorce i.e. issues such as the rights to assets and debts of each spouse, which spouse will get the marital home, which spouse will pay child support, child custody and visitation, insurance coverage, etc. Both your spouse and you can create a separate separation agreement and ask the court to turn it into an official order. And, if you have trouble arriving at an agreement with your spouse, then you can hire a mediator to help you with the negotiations pertaining to property, custody and support.
If you file for legal separation in New Hampshire and you have minor children, then the procedure can be quite complex. Parenting is decided in the same manner as in a divorce. This requires that the parents must attend a 4-hour seminar sponsored by the court on the effects of legal separation in kids and the parents must submit the certificate of attendance with the court.
Also, in most of the cases, the judge will uphold the same custody arrangement from a legal separation order in your divorce. If you are the primary custodian of the children, then you will not face much trouble; however, if you want to change the custody in a divorce, then this can be quite an uphill task and you will have to prove in the court that there has been a change in your family circumstances and it is in the best interests of the child to modify the custody arrangements.
Step 4: Finalizing the Legal Separation
Once an agreement is reached, the judge will review the terms of the agreement to ensure that it is fair to both spouses. There may be a brief hearing that you may have to attend before a judge signs your separation order.
A separation agreement is signed by both your spouse and you. This is a legally binding contract that can help to resolve issues related to legal separation such as property, debt, child custody, child support, visitation and alimony issues. The separation agreement is a detailed and complex document and the complexity depends on the situation of your marriage. You can either draft your separation agreement by consulting an attorney or you can prepare your own agreement.
Legal Separation Costs
To file for a limited divorce in New Hampshire, you need to pay a filing fee of $252.
- You can check the website of the New Hampshire Judicial branch for information about legal separation and other related issues in the state.
- You can find the appropriate court to file your petition for legal separation here.
- New Hampshire Judicial Branch has a Self-Help Center, which provides information about the court system of New Hampshire, how it works, procedures, etc.
- Click here for more details on how to file for legal separation in New Hampshire.
The procedure and tips laid out by us in this article should guide you through this tough situation you and your spouse find yourself in. We hope that the decision you eventually make helps the two of you move forward in your best interest.
A legal researcher by trade, Steffan serves as the Editor for all of eDivorce’s helpful guides and blog posts. He loves writing about the legal process in an effort to help reduce the complexities of the legal system. Learning from his own personal divorce, he enjoys sharing what has helped him, what didn’t, and how to move on with your life.