In re Ross & Ross - 169 N.H. 299, 146 A.3d 1232 (2016)

Rule:

Generally, although the misconduct of the plaintiff occurs after the commencement of his or her suit, it is as fully effective to bar the right to a fault-based divorce therein as if it had occurred previous to the commencement of the suit. This general proposition is reflected in the plain language of RSA 458:7, which states that a divorce shall be decreed in favor of the innocent party. RSA 458:7. The statute necessarily requires that one be an "innocent party" at the time of the decree. The statute makes no exception for fault-based grounds that arise prior to the final decree, regardless of whether they arise before or after the filing of the divorce petition.

Facts:

Respondent Christopher Ross and petitioner Danielle Ross were married in 2002. The petitioner filed for divorce in December 2011, alleging both fault and irreconcilable differences as grounds for divorce. The respondent cross-petitioned for divorce on fault-based grounds, due to the petitioner's alleged adultery, and irreconcilable differences. Approximately eleven months after the petitioner filed for divorce, the respondent began a sexual relationship with another woman. The petitioner filed a motion to dismiss, alleging recrimination by the respondent. The trial court granted the motion over the respondent's objection. In 2015, the court entered a final decree of divorce citing irreconcilable differences as the cause of the marital breakdown. Respondent appealed, arguing that the trial court erred in granting petitioner’s motion to dismiss since his infidelity, which occurred eleven months after the parties' separation, could not be used as a basis for the defense of recrimination.

Issue:

Could respondent’s infidelity, which occurred eleven months after the parties’ separation, be used as a basis for the defense of recrimination, thereby warranting the dismissal of respondent’s cross-petition for divorce?

Answer:

Yes.

Conclusion:

When respondent began a sexual relationship with another woman about 11 months after petitioner filed for divorce, the Court held that the trial court properly dismissed the fault-based ground in respondent's cross-petition for divorce based on the defense of recrimination, as RSA 458:7 required that one be an "innocent party" at the time of the decree and made no exception for fault-based grounds that arose prior to the final decree. According to the Court, a spouse who was guilty of an offense against the other spouse, which would be grounds for divorce, cannot himself obtain a divorce under RSA 458:7. Although respondent argued that his adultery did not cause the breakdown of the marriage, causation was not an element of the defense of recrimination.