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Therefore, the trial court correctly considered Husband’s post-petition conduct when deciding the motion to dismiss.The Court further stated the fact that Husband’s adultery did not lead to the breakdown of the marriage does not bar recrimination as a defense, stating “Causation is not an element of the defense of recrimination.” The Court affirmed the trial court’s decision to dismiss the fault grounds and grant a divorce on irreconcilable differences.The parents could still alternate the Christmas overnight, but maintain a consistent, fixed schedule for the remaining holiday time.The parent who does not have parenting time on a holiday can still plan celebrations around a holiday.Until 2012, the burden of proof to terminate a guardianship of a child was placed upon the parent to show, by a preponderance of the evidence, that the substitution or supplementation of parental care and supervision was no longer necessary to provide for the child’s essential physical and safety which implemented a two-tier standard for fit and unfit parents.The above standard still applied in cases where parents had contested a guardianship and the guardianship was granted over their objection.Wife filed a motion to dismiss the adultery grounds pled against her.She argued the defense of recrimination, or in other words that the husband was no longer an “innocent spouse” because of his own adultery.
The outcome is a cautionary tale for persons seeking fault grounds for divorce.For example, the non-holiday parent can bring the children to an Easter egg hunt, fireworks, or a haunted house adventure during their parenting time.On August 23, 2016, the New Hampshire Supreme Court issued an opinion in Ross and Ross.Wife argued the trial court did not err in granting the motion to dismiss because the respondent was not an “innocent party” within the meaning of the statute. The Court examined RSA 458:7, which states that a divorce “shall be decreed in favor of the innocent party.” The statute requires that one be an “innocent party” at the time of the decree.The statute makes no exception for fault based grounds that arise prior to the final decree, regardless of whether they arise before or after the filing of the divorce petition.
Instead of alternating, each parent would have set holidays.