E-mails fall short for fault-based divorce

By Nancy West

If you’re seeking a fault-based divorce in New Hampshire, you’d better have more than sexually suggestive e-mails and hurt feelings on which to base your case.

That’s the message the state Supreme Court sent in a March 5 ruling that set a standard for finding one spouse at fault. The ruling may affect future divorces involving a claim that one spouse caused what state law describes as “serious injury to health or endangered reason” to the other, one of nine grounds for fault-based divorce in New Hampshire.

“The decision raised the bar. It’s got to be serious injury, not just hurt feelings,” said Nashua attorney William Aivalikles, who represented Daniel R. Guy’s appeal of the divorce filed by his wife, Joni Guy.

Joni Guy claimed sexually suggestive e-mails Mr. Guy exchanged with a former girlfriend caused Mrs. Guy to be “angry, upset and distraught,” according to court documents.

Senior Associate Justice Linda S. Dalianis, citing previous cases, said Mrs. Guy’s claim was based on an 1840 law that allowed divorce when the claim didn’t meet the standard for legal cruelty but the conduct “might make life intolerable and death welcome.”

Being “angry, upset and distraught” isn’t enough to meet that standard, Dalianis wrote, citing similar past cases that involved constant drunken abuse by domineering husbands, including a threat of murder. In each of those cases, the behavior caused some effect to the “innocent” party, such as becoming highly nervous, losing weight or undergoing counseling, Dalianis wrote.

“This kind of effect upon (Mrs. Guy’s) physical and mental health is insufficient, as a matter of law, to sustain a divorce. … In cases involving a divorce upon these grounds, the effect upon the ‘innocent’ spouse has been much more severe than mere anger and upset and the conduct in which the ‘guilty’ spouse engaged was more brutal than merely e-mailing his former girlfriend,” Dalianis wrote in the unanimous decision.

Few fault-based divorces
Only about 1.3 percent of all New Hampshire divorces last year were completed as fault-based, according to the state Division of Vital Records. There were 4,913 divorces last year, and 4,847 of them were no-fault divorces based on irreconcilable differences.

In 2007, the most recent year for which the National Center for Health Statistics has divorce figures, New Hampshire’s divorce rate was 3.8 per 1,000 of the state’s total population. That’s about the same as the national average, 3.6 per 1,000, although not all states report, according to the NCHS.

Experts estimate between 5 and 10 percent of divorces are filed as fault-based, but fewer than 2 percent are granted, according to the state Division of Vital Records.

Before no-fault divorce became part of New Hampshire law in 1971, a finding of fault was required to dissolve a marriage here, Aivalikles said.

Property settlement
In fault-based divorces, marital assets can be divided to favor the “innocent” party, Aivalikles said.

In the Guy divorce, the original property settlement, which was partially based on Mr. Guy’s fault, was vacated in the Supreme Court’s ruling.

Mr. Guy is expected to get an additional $56,000 as a result, Aivalikles said.

David Forrest, the marital master who heard the divorce, had recommended the fault-based grounds and the recommendation was approved by Judge William Groff.

The trial court dismissed Mrs. Guy’s 2007 fault claims of habitual drunkenness and adultery against her husband of 18 years.

“It’s safe to say my wife believed a lot of things that turned out to be untrue,” said Mr. Guy, who added that he neither has a drinking problem nor committed adultery.

The ruling will likely mean Daniel Guy, a disc jockey and broadcast engineer, gets to keep at least half of his $112,000 inheritance, which was an issue in the settlement, he said.

“(Justice Dalianis) took more of a common-sense approach to my case. Finding fault was just a stretch,” Mr. Guy said.

Joni Guy couldn’t be reached for comment, and her attorney, Francis Holland of Nashua, didn’t return phone calls to the New Hampshire Sunday News.

Alternatives to litigation
Wilton lawyer Honey Hastings said she changed her practice four years ago after a troubling case involving sexually graphic testimony.

Hastings, who wrote “The New Hampshire Divorce Handbook,” said, “I don’t litigate anymore. I felt it was enabling people to treat each other badly and hurt children.”

She offers services to families, including mediation and collaborative practice, also called “no-court divorce.”

Attorney Amy Wolfson of Nashua said fault-based divorces might lead to unequal division of assets, alimony and increased alimony, and may affect parenting rights and responsibilities.

Depending on how outrageous the fault, Wolfson said, the asset split could be 55-45, 60-40 or whatever the judge decides. In one of her cases, she said, her client walked away with 90 percent of the marital assets, though she said such cases are “extraordinary.”

Mediation isn’t always the best option in divorce cases, Wolfson said.

“Mediation works well when both parties are of equal bargaining power,” she said. “When you have power disparity in the marriage, it doesn’t work well.”

Randy Kessler, secretary of the Family Law Section of the American Bar Association, said New Hampshire is in the mainstream, as about 25 states have both fault and no-fault divorces. Seventeen states have no-fault only, and eight states have fault-based divorces only, he said.

Even if fault isn’t alleged in a divorce suit, Kessler said, fault may be found and used as leverage in reaching a favorable settlement for the injured party. Fault also can be relevant in deciding settlements and child-custody arrangements, he said.