New Hampshire Legal Separation Agreement
New Hampshire grants a decree of legal separation that has the effect of a divorce except the spouses cannot remarry, and it can be amended to a divorce if justice requires. Attorney review available.
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Introduction
New Hampshire grants a court decree of legal separation that has, in all respects, the effect of a divorce, with one difference: the spouses are not thereby made free to marry any third person (RSA 458:26, I). A legal separation lets a married couple formally separate through the court, dividing property and debts and addressing support and parenting, while staying legally married so that neither spouse may remarry. The grounds and residency rules are the same as for a divorce: a court may decree a legal separation in any case where a divorce could be granted, on either the no-fault ground of irreconcilable differences that have caused the irremediable breakdown of the marriage or a fault ground listed in RSA 458:7, and the residency rule in RSA 458:5 requires either that both parties are domiciled in New Hampshire, that the plaintiff is domiciled here and the defendant is served in the state, or that the plaintiff has been domiciled in the state for one year before filing. A legal separation does not end the marriage and does not close off a divorce later: a person who has been granted a legal separation may file a motion to amend the decree to one of divorce, which the court may grant in its discretion after considering whether justice requires the change (RSA 458:26, II). Couples choose it to keep a spouse on health insurance, to reach the ten-year mark for certain military and Social Security spousal benefits, for religious reasons, or as a trial step before deciding to divorce. New Hampshire divides marital property equitably rather than by a community-property split (RSA 458:16-a); because those terms are the same ones used in a divorce, they belong in a New Hampshire Marital Settlement Agreement, and if you decide to end the marriage instead the pleading that starts it is a New Hampshire Divorce Petition. DocDraft builds your New Hampshire legal separation agreement from your facts, with attorney review available before you sign.
Key Things to Know
- 1
New Hampshire grants a court decree of legal separation that has, in all respects, the effect of a divorce, except that the spouses are not made free to marry any third person (RSA 458:26, I). The couple stays legally married.
- 2
A New Hampshire court may decree a legal separation in any case where a divorce could be granted, on the no-fault ground of irreconcilable differences causing the irremediable breakdown of the marriage or a fault ground listed in RSA 458:7.
- 3
The residency rule for a New Hampshire legal separation is the same as for a divorce (RSA 458:5): both parties domiciled in the state, or the plaintiff domiciled here with the defendant served in the state, or the plaintiff domiciled here for one year before filing.
- 4
A New Hampshire legal separation does not end the marriage. A person granted a legal separation may file a motion to amend the decree to one of divorce, which the court may grant in its discretion after considering whether justice requires it (RSA 458:26, II).
- 5
Couples choose a New Hampshire legal separation over divorce to keep a spouse on health insurance, to reach the ten-year mark for certain military and Social Security spousal benefits, for religious reasons, or as a trial step before deciding to divorce.
- 6
Because a New Hampshire legal separation has the effect of a divorce, the court can order alimony and address parenting on the same basis as in a divorce (RSA 458:26, I).
- 7
New Hampshire divides marital property equitably rather than by a community-property split (RSA 458:16-a). Because that division is the same one used in a divorce, those terms belong in a New Hampshire marital settlement agreement, not in the separation itself.
Key decisions before you file
Before you file a Legal Separation Agreement in New Hampshire, a few decisions shape the document: which option to choose and what each one means. The Legal Separation Agreement guide walks through them.
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New Hampshire Requirements for Legal Separation Agreement
New Hampshire grants a court decree of legal separation in any case where a divorce could be granted (RSA 458:26). The couple stays legally married while living apart, and neither spouse may remarry.
A New Hampshire decree of legal separation has, in all respects, the effect of a divorce, except that the parties are not thereby made free to marry any third person (RSA 458:26, I).
The grounds are the same as for a divorce: the no-fault ground of irreconcilable differences that have caused the irremediable breakdown of the marriage, or a fault ground listed in RSA 458:7.
The residency rule in RSA 458:5 is met when both parties are domiciled in New Hampshire, when the plaintiff is domiciled here and the defendant is served in the state, or when the plaintiff has been domiciled in the state for one year before filing.
A person who has been granted a legal separation may file a motion to amend the decree to one of divorce, which the court may grant in its discretion after considering whether justice requires the change (RSA 458:26, II).
Because a legal separation has the effect of a divorce, the court can order alimony and address support on the same basis as in a divorce (RSA 458:26, I).
New Hampshire divides marital property equitably rather than by a community-property split (RSA 458:16-a). Because this is the same division used in a divorce, set it out in a New Hampshire marital settlement agreement rather than in the separation itself.
A New Hampshire legal separation sets the couple's marital status; a marital settlement agreement is the contract that divides property and sets alimony and is used in both a separation and a divorce. Keep the money and parenting terms in the marital settlement agreement and rely on the legal separation for status.
Frequently Asked Questions
In New Hampshire, a legal separation is a court decree by which a married couple formally separates while staying legally married. By statute the decree has, in all respects, the effect of a divorce, except that the parties are not thereby made free to marry any third person (RSA 458:26, I). The spouses live apart and the court can address property, support, and parenting, but the marriage is not dissolved. It differs from a divorce, which ends the marriage, and from simply living apart, which does not create a decree.
Yes. New Hampshire is a state where a court can enter a decree of legal separation in any case where a divorce could be granted (RSA 458:26). Not every state offers a separation decree, but New Hampshire does, and it gives the decree the effect of a divorce except that the spouses may not remarry. A New Hampshire legal separation lets a couple settle their affairs and obtain court orders while remaining married.
The grounds are the same as for a divorce: the no-fault ground of irreconcilable differences that have caused the irremediable breakdown of the marriage, or a fault ground listed in RSA 458:7. The residency rule in RSA 458:5 is met if both parties are domiciled in New Hampshire, if the plaintiff is domiciled here and the defendant is served in the state, or if the plaintiff has been domiciled in the state for one year before filing.
A New Hampshire divorce ends the marriage, so both people are single again and free to remarry. A New Hampshire legal separation keeps the marriage in place: the decree has the effect of a divorce in all respects except that the spouses may not remarry (RSA 458:26, I). The court can still divide property and order support and parenting, but the couple stays married until a later divorce or an amendment of the decree to one of divorce.
Yes. A person who has been granted a legal separation may file a motion to amend the decree to one of divorce. The court may grant the motion in its discretion after considering whether justice requires that the change be made (RSA 458:26, II). This is a discretionary step rather than automatic, so the court decides whether to amend the decree based on the circumstances.
Almost. By statute a decree of legal separation has, in all respects, the effect of a divorce, except that the parties shall not thereby be made free to marry any third person (RSA 458:26, I). So the court can divide property, order alimony, and set parenting just as in a divorce, but the marriage itself remains in place and neither spouse may remarry until the marriage is ended by a divorce.
New Hampshire divides marital property equitably rather than by a community-property split (RSA 458:16-a), and because a legal separation has the effect of a divorce the court can order alimony on the same basis as in a divorce (RSA 458:26, I). Because the division itself is the same document used in a divorce, those property and support terms are set out in a New Hampshire marital settlement agreement rather than repeated in the separation.
People choose a New Hampshire legal separation over divorce for practical or personal reasons. Staying married can keep one spouse on the other's health insurance, though many plans treat a legal separation the same as a divorce, so confirm with the insurer. Reaching ten years of marriage can matter for certain military and Social Security spousal benefits. Some couples separate rather than divorce for religious reasons, and others use it as a trial step, keeping the option to reconcile or to amend the decree to a divorce later (RSA 458:26, II).