On November 10, 2015, Gay & Lesbian Advocates & Defenders and the ACLU of New Hampshire filed an amicus brief in a case before the New Hampshire Supreme Court concerning the fair distribution of property in a divorce between two women who were in a 20+ year committed relationship, and joined in a civil union/married for four of those years.
In deciding the property distribution, the trial court considered only the period of civil union/marriage, and found the relationship to be short-term. The court then relied on that finding to allocate the bulk of marital property to one spouse, treating the couple as though they had no interdependent relationship prior to their first opportunity to enter into a legal relationship in 2008.
The brief argues that it was objectively unreasonable to characterize the 20+ year relationship as short-term, as well as contrary to relevant principles of New Hampshire law and policy which support the recognition of premarital cohabitation periods.
Further, under New Hampshire law, the time factor justifying a potential, unequal division of property is only a short-term duration where it is possible to return the parties to their pre-marriage position. That is not realistic when, as in this case, the parties have a long-term relationship which is a mix of years of economically interdependent cohabitation and marriage.
The brief also lays out that it is a violation of Equal Protection to limit access to a state benefit (in this case presumptively equal division of marital property) to those who are married where same-sex couples were denied the opportunity to marry, and that to effectively rely on that bar and disregard the full length of the couple’s relationship here violates the United States Supreme Court’s ruling in Obergefell (that bans on marriage for same-sex couples were, and are, unconstitutional).
On August 19, 2016, the New Hampshire Supreme Court vacated the trial court’s decision, holding that the trial court should have considered premarital cohabitation when formulating an equitable distribution of the marital property.