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N.H. Supreme Court says divorce courts should consider premarital cohabitation

  • Gary Hicks, 2016 Courtesy—N.H. Supreme Court



Monitor staff
Sunday, August 28, 2016

Divorce courts should factor in the time that same-sex couples lived together before they could legally marry when deciding how to divide the estate after the marriage ends, the state Supreme Court ruled in a case that could affect divorces among opposite-sex couples.

“It is a landmark decision,” said Manchester attorney Paul Kfoury who argued the case before the court with attorney Andrea Labonte. “New Hampshire had never addressed in any formal way the issue of premarital cohabitation, certainly not for same-sex marriages.”

The unanimous ruling concerns two women, Deborah Munson and Coralee Beal of Chester, who began living together in 1993. As described in court documents, they were joined in a civil union in 2008 after that option became available in New Hampshire and in 2011 they were married when that option became legal.

In 2012, Munson filed for divorce in Derry Family Court, arguing that their union was a “short-term marriage,” but Beal challenged that description, arguing in court filings that “the court must consider the parties’ lengthy 21-year relationship . . . (when ordering) a distribution of the marital property.”

The family court eventually ruled that the 2008 civil union “started their marriage and the issues in their divorce will be determined using that as the start date,” and, according to court papers, awarded Munson 88 percent of the value of the estate. Beale appealed to the Supreme Court.

The unanimous state Supreme Court ruling, handed down Aug. 19, sends the matter back to the lower court to be reheard. It does not say that the division of property or alimony in this case must change, or even that cohabitation must be considered when making a division of property – only that courts cannot rule out the time that couples lived together before marriage.

“We see no reason why (state law) RSA 458:16-a, II(o), which broadly permits the trial court to consider ‘any other factor that (it) deems relevant,’ would not permit the court to consider premarital cohabitation,” wrote Justice Gary Hicks, who penned the ruling.

Hicks also noted the issue is not limited to divorces of same-sex couples: “Premarital cohabitation is not unique to same-sex couples. In 2008, 6.2 million households were headed by people in co-habitating relationships . . . They included 565,000 same-sex couples. Our holding that the court may consider premarital cohabitation applies to all divorce proceedings.”

“It does come up frequently, because in this day and age people are living together for a number of years before marriage,” said Labonte, who represented Beal and argued the case at the supreme court. “I think, because there really hasn’t been a case that addressed it in New Hampshire, (the ruling) is going to cause family judges to take a closer look at cohabitation. Were they ignoring it before? No – but this is a more clear direction.”

However, Kysa Crusco, a Bedford attorney who represented Munson, said she didn’t think the ruling would have great significance in day-to-day decisions by family courts.

“I think it confirms what everybody already knew,” said Crusco, who was one of the first attorneys in the state to handle same-sex divorce cases. “It wasn’t deemed a retroactive marriage. (The ruling) didn’t say you have to now divide it 50-50, or anything like that. . . . We believe (the family court) got the property division right, fair and equitable.”

The case drew the attention of the ACLU and the Gay & Lesbian Advocate & Defenders of Boston, both of which filed briefs with the court in support of Beal.

“We are still working toward full marital equality in the post-Obergefell world,” said Gary Buseck, GLAD’s legal director, in a prepared statement after the ruling came down. “This decision represents a very concrete development for all divorcing couples.”

Obergefell v. Hodges was the 2015 U.S. Supreme Court case in which the court ruled that the fundamental right to marry is guaranteed to same-sex couples.

(David Brooks can be reached at 369-3313, dbrooks@cmonitor.com or on Twitter @GraniteGeek.)