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Legal Separation in New Hampshire: RSA 458:26 Rules (2026)

Independently fact-checkedBy Recording Law Editorial Team9 min read

Independently fact-checked against primary sources (last audited October 8, 2026). · 12 primary sources cited on this page. How we verify our legal content

Legal Separation in New Hampshire: RSA 458:26 Rules (2026)

Yes. Under RSA 458:26, in any case in which a divorce might be decreed, the court may decree a legal separation on either spouse's petition. The separation has "in all respects the effect of a divorce," except that neither spouse is free to marry anyone else, and either spouse can later ask the court to turn it into a divorce.

Information last verified on 2026-10-08. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article covers legal separation under New Hampshire law, mainly RSA 458:26 to 458:29 and the related support petition in RSA 458:31. It does not cover how alimony or parenting rights are calculated, inheritance effects, or other states' law. For divorce grounds and procedure, see New Hampshire divorce laws.

RSA 458:26(I) provides:

"In any case in which a divorce might be decreed, the superior court, on petition of either party, may decree a legal separation of the parties, which separation shall have in all respects the effect of a divorce, except that the parties shall not thereby be made free to marry any third person and except as hereinafter provided."

RSA chapter 458 places these sections under the subheading "Limited Divorces." The New Hampshire Supreme Court described the result in Petition of Malisos, 166 N.H. 726 (2014), quoting a treatise: "While the separation has in all respects the effect of a divorce, it is not a divorce, and the parties remain legally married."

The statute still says "superior court," which is older wording; ask the New Hampshire Judicial Branch where to file.

Because separation is available "in any case in which a divorce might be decreed," the grounds are the same as for divorce:

  • No-fault. RSA 458:7-a: "A divorce from the bonds of matrimony shall be decreed, irrespective of the fault of either party, on the ground of irreconcilable differences which have caused the irremediable breakdown of the marriage."
  • Fault. RSA 458:7 lists fault grounds including impotency, adultery, extreme cruelty, conviction of a crime with imprisonment, injury to health, absence for 2 years, substance abuse for 2 years, joining a sect that holds marriage unlawful and refusing to cohabit for 6 months, and abandonment for 2 years. See New Hampshire divorce laws for the details of each.

Residency

RSA 458:26 to 458:30 do not state their own residency rule. Separation is available only "in any case in which a divorce might be decreed," and New Hampshire's divorce domicile rules are in RSA 458:4 to 458:6. Ask the court clerk or a lawyer licensed in New Hampshire whether those rules apply to your separation petition before filing.

RSA 458:27 gives the court the same toolkit it has in a divorce:

New Hampshire: a wooden gavel on a sound block on a plain desk in window light

"Upon such petition for legal separation the procedure shall be the same as upon petitions for divorce, and the court shall have the same power in all matters relating to restraining orders and decrees, allowances, alimony, parental rights and responsibilities under RSA 461-A for children and division or apportionment of the property of the parties, as in cases of divorce. The name of the wife shall not be changed."

That means a separation decree can divide property, award alimony and decide parental rights and responsibilities, just as a divorce decree would. In particular:

  • Temporary orders. After a separation petition is filed, the court may issue temporary orders under RSA 458:16(I), including protective orders, temporary custody and support of children, a temporary allowance and orders freezing property. Before the final hearing, the court may order the marital residence sold if both spouses filed a written stipulation agreeing to the sale; without one, it may not order a sale before the final hearing as long as the spouse living there can pay the home's mortgage, taxes, insurance and upkeep as they come due (RSA 458:16(I)(h)).
  • Alimony. Term and reimbursement alimony are available "in a case for divorce, legal separation, or annulment" (RSA 458:19-a(I), (V)). See New Hampshire alimony laws.
  • Children. Parental rights and responsibilities are decided under RSA 461-A. See New Hampshire child custody laws.
  • Names. The name-restoration statute, RSA 458:24, applies to proceedings under the chapter "except an action for legal separation," and RSA 458:27 says the name of the wife "shall not be changed."

RSA 458:26(II) provides: "A person concerning whom a legal separation has been decreed may file a motion to amend the decree to one of divorce. The court may then consider whether justice requires that such a change be made, and, upon such consideration, the court may, in its discretion, grant such a motion."

New Hampshire: a wall calendar with a span of weeks marked with a pencil line

The statute does not set a waiting period before the motion can be filed. The conversion is not automatic: the court decides whether justice requires it.

Getting back together after a separation decree

Spouses who reconcile can undo much of the decree. Under RSA 458:28, they may resume marital relations at any time by filing a written declaration, signed, acknowledged and witnessed, with the clerk of the court for the county where the separation was decreed.

RSA 458:29 sets the effect: "Such resumption of marital relations shall terminate and annul all restraining orders, and all decrees relating to alimony or parental rights and responsibilities, but shall not affect any decree relating to the division or apportionment of property." A property division made in the separation decree therefore stays in place after a reconciliation.

Support orders without a separation or divorce

New Hampshire also allows a narrower petition. Under RSA 458:31, if either spouse is living apart from the other without justifiable cause or willingly absents himself or herself, the court may, on the other spouse's petition, issue orders "which may at the discretion of the court be ex parte and which may grant such relief as provided for in RSA 458:16."

That section adds: "The domicile requirements of RSA 458:4, 5, and 6 shall not apply to this section; and the court may grant relief hereunder to a nonresident plaintiff if the defendant is a resident of this state."

Inheritance and other effects

This page does not cover how a legal separation affects inheritance or other rights at death. A lawyer licensed in New Hampshire can advise on estate planning during a separation.

Disclaimer: This article provides general legal information about legal separation under New Hampshire law, mainly RSA 458:26 to 458:29 and 458:31. It is not legal advice. The information was verified on 2026-10-08, and the law can change. For advice about your situation, consult a lawyer licensed in New Hampshire or the New Hampshire Judicial Branch.

Last updated: 2026-10-08.

Frequently Asked Questions

Does New Hampshire have legal separation?

Yes. RSA 458:26 lets the court decree a legal separation on either spouse's petition in any case in which a divorce might be decreed.

Is a legal separation the same as a divorce in New Hampshire?

It has in all respects the effect of a divorce, but the spouses are not free to marry anyone else (RSA 458:26). In Petition of Malisos (2014), the New Hampshire Supreme Court said the parties remain legally married.

Can property be divided in a New Hampshire legal separation?

Yes. RSA 458:27 gives the court the same power over division or apportionment of property as in a divorce, and RSA 458:29 keeps that property decree in place even if the spouses later reconcile.

How do you convert a legal separation to a divorce in New Hampshire?

Either spouse may file a motion to amend the separation decree to one of divorce, and the court may grant it in its discretion if justice requires the change (RSA 458:26(II)).

Can I get support from my spouse in New Hampshire without filing for separation?

RSA 458:31 lets a spouse petition for orders when the other spouse is living apart without justifiable cause, and the divorce domicile rules in RSA 458:4 to 458:6 do not apply to that petition.

Updates

Independently fact-checked against the cited primary sources

Sources and References

  1. RSA 458:26, Legal separation; conversion to divorce(gc.nh.gov).gov
  2. RSA chapter 458 table of contents (Limited Divorces)(gc.nh.gov).gov
  3. Petition of Malisos, 166 N.H. 726 (2014) (Caselaw Access Project reporter text)(static.case.law)
  4. RSA 458:7-a, Irreconcilable differences(gc.nh.gov).gov
  5. RSA 458:7, Absolute divorce (fault grounds)(gc.nh.gov).gov
  6. RSA 458:5, Divorce jurisdiction (domicile)(gc.nh.gov).gov
  7. RSA 458:27, Procedure and powers in legal separation(gc.nh.gov).gov
  8. RSA 458:16, Temporary orders(gc.nh.gov).gov
  9. RSA 458:19-a, Term and reimbursement alimony(gc.nh.gov).gov
  10. RSA 458:24, Restoration of former name(gc.nh.gov).gov
  11. RSA 458:28, Resumption of marital relations(gc.nh.gov).gov
  12. RSA 458:29, Effect of resumption(gc.nh.gov).gov
  13. RSA 458:31, Support when spouse is absent without justifiable cause(gc.nh.gov).gov
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