Protecting Separate Property in New Hampshire

New Hampshire is an equitable distribution state with a unique twist—it uses an all-property approach. Under RSA 458:16-a, courts include all property of either spouse in the divisible estate, including premarital assets, gifts, and inheritances. These aren't excluded—they're deviation factors. Whether you're navigating an uncontested or contested divorce, understanding NH's all-property system is essential.

New Hampshire's All-Property Approach

Unlike "dual-property" states that exclude certain assets, New Hampshire puts everything on the table:

• Premarital property: Included in the estate, but origin is a deviation factor
• Gifts and inheritances: Also included—not automatically protected
• 50/50 presumption: Equal division presumed equitable unless factors justify deviation
• Decree date controls: Property acquired up to the decree date is divisible

The key cases Holliday v. Holliday (1994) and In re Preston (2001) confirm this approach: the court includes all property, then decides whether 50/50 is equitable or whether factors justify unequal division.

The Two-Step Analysis

Under In re Routhier (2022) and recent cases, NH courts apply a two-step framework:

• Step 1 (Law): Determine what constitutes marital property under RSA 458:16-a(I)—reviewed de novo
• Step 2 (Discretion): Divide equitably under RSA 458:16-a(II) factors—reviewed for abuse of discretion

This means the classification question is legal, but the division decision is highly discretionary. Courts must provide written reasons for their property division.

Premarital Contribution Credits (Sarvela)

In In re Sarvela (2006), the NH Supreme Court approved a direct credit for premarital contributions:

• Dollar-for-dollar return: Documented premarital funds (e.g., down payments) can be credited back
• Factor (o) catch-all: The "any other relevant factor" provision enables these credits
• Before general division: Credit is applied first, then remaining equity divided

Example: If you contributed $40,000 premarital funds toward the home, courts may credit that back to you before dividing the remaining equity 50/50.

Dissipation Add-Backs (Brownell)

Under In re Brownell (2012) and In re Nadeau (2024), courts can add back dissipated assets:

• Constructive award: Dissipated funds are added to the wrongdoer's column
• Factor (f): RSA 458:16-a(II)(f) considers actions contributing to "growth or diminution in value"
• Timing matters: Dissipation during marital breakdown weighs heavily

This prevents a spouse from benefiting by wasting marital assets during the divorce process.

Decree Date—Not Separation—Controls

A critical difference from many states: NH uses the decree date as the cutoff:

• No separation freeze: Property accumulates until the divorce decree
• Post-separation earnings: Income received and retained before decree becomes divisible property
• Valuation discretion: Courts choose appropriate valuation dates case-by-case (Hillebrand)

Under In re Heinrich (2012), wages not yet earned are not property—but once income is "received and retained" during the marriage, it enters the divisible estate.

Estimate Your New Hampshire Divorce Costs

All-property disputes involving premarital credits and deviation factors can increase legal costs. Use our calculator to estimate your total expenses:

Key Deviation Factors Under RSA 458:16-a(II)

• (m) Premarital property: Value of property acquired before marriage
• (n) Gifts/inheritances: Value of property acquired by gift, devise, or descent
• (f) Growth/diminution: Actions contributing to value changes
• (g) Contribution disparity: Including homemaking and childcare
• (o) Catch-all: Any other relevant factor (used for Sarvela credits)

Protection Strategies

• Document premarital contributions: Bank records, settlement statements for Sarvela credits
• Preserve gift/inheritance records: Written documentation supports factor (n) deviation
• Track separate funds: Even though included, tracing supports unequal division
• Consider prenuptial agreements: Factor (k) recognizes valid prenuptial allocations
• Act promptly: The longer until decree, the more property accumulates in the estate
• Get appraisals: Document values at marriage and at key dates

Key Takeaways

• All-property state: Premarital assets, gifts, and inheritances are included—not excluded
• 50/50 presumption: Equal division presumed equitable, with factor-based deviations
• Sarvela credits: Premarital contributions can be credited back before division
• Brownell add-backs: Dissipated assets added to wrongdoer's column
• Decree date cutoff: Property accumulates until divorce is final—not separation
• Written reasons required: Courts must explain property division decisions

For the complete New Hampshire marital property guide and divorce timeline, see our detailed resources. For official forms, visit the New Hampshire Courts Divorce Forms.