Adultery was back in the courts last week. No need to check your calendars. It’s 2021 — not 1821 — and adultery is legislated in New Hampshire. I’m trying to wrap my head around why and how, in Live Free or Die territory, this is considered a state matter. Adultery might go against one’s vows, one’s values and even one’s religious beliefs. But against one’s state of residence?

In 2003, the New Hampshire Supreme Court defined adultery as extramarital intercourse between a man and a woman. Last week that case was overturned in a landmark ruling that “updated” the state’s adultery definition so as to include same-sex hanky panky. Regarding equal rights, New Hampshire is one of the most LGBTQ-friendly states in the country. Kudos for righting yet another inequality by including gay sex in the adultery definition!

The issue at hand arose during the divorce of Molly and Robert Blaisdell. A lower court determined that Ms. Blaisdell’s alleged affair with a woman did not meet the state’s definition of adultery. Robert Blaisdell, in an altruistic pursuit of inclusivity, challenged the 2003 adultery ruling. Robert’s attorney, Ted Lothstein, said, “It was an antiquated law. It was offensive to gay people.” Ted is obviously a friend to, and quite an advocate for, gay people!

Same-sex marriage was legalized in New Hampshire in 2009. Indeed, it would be inconsistent to recognize same-sex marriage and not same-sex adultery. Thursday’s ruling overturned the lower court and redefined adultery as “voluntary sexual intercourse between a married person and someone other than that person’s spouse, regardless of the sex or gender of either person.”

According to Justice Patrick Donovan, “Such an interpretation would not effectuate the statute’s overall purpose of protecting the marital promise of fidelity in all legally recognized marriages and would lead to an absurd and unjust result.” Absurd and unjust. Kind of like the state inserting itself into the bedrooms of consenting adults to protect an assumed marital promise of fidelity. I have a hunch the state wasn’t in attendance at the wedding and doesn’t know what vows were exchanged. Speaking of vows, any spouse vindictive enough to drag this mess into court is hardly loving, honoring or cherishing. Shouldn’t the state be addressing this?

Until 2014, adultery was illegal in New Hampshire. (Not 1914, but 2014.) Yet it continues to be grounds for a “fault” divorce. New Hampshire recognizes both no-fault and fault divorces. In the latter, an accusation of a state-recognized “fault,” such as adultery, can affect the division of marital assets. Once again, the Live Free or Die state proves to be anything but!

The potential for finding fault invites an angry vindictive ex and his/her unscrupulous attorney(s) to use the court system to wage an all-out character assassination on someone he/she purports to have loved. Filing fault for adultery is nothing more than a punitive measure with two ultimate goals — to destroy the reputation of the former spouse and to inflict financial vengeance.

Reasons for adultery are wide-ranging, from callous spousal disregard to deep and debilitating unhappiness to domestic and/or sexual abuse within the marriage. While the reasons for adultery are varied, the reasons for filing a fault charge are pretty cut and dry. Revenge and money.

Back to the Blaisdells. Their case involves an allegation of fault. Of course it does! Meanwhile, Robert is very busy with other court matters as he awaits trial on charges of domestic assault. Is it just me, or does this shed new light on the whole adultery thing?

The big question is why does the state deem adultery its business at all? Wouldn’t it be far more judicially productive to focus on non-consensual acts of sexual and domestic violence, and protecting real victims?

Here’s a novel idea. According to one law firm, in no-fault California “the judge isn’t there to punish infidelity, and divorce isn’t a punitive process.” No-fault divorce would lessen the emotional toll on all parties. It would go far toward preserving the once-family’s resources. And it would alleviate our critically overtaxed judicial system. Rather than clogging up family court with spite and greed it could concentrate instead on crucial matters such as child abuse and neglect, domestic violence, parental rights, child services and adoptions.

Adultery is either a huge wake-up call or an indication that the marriage is so far gone as to be beyond repair, neither of which requires the state to sit in judgment.

Jonna Carter lives in South Conway with her husband and five crazy rescue dogs.

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