Same-Sex Divorce: Everything You Need to Know

Same-Sex Divorce: Everything You Need to Know

Same-sex marriage was legalized in New Jersey in 2013 through a court decision, and this right was subsequently cemented in all 50 states two years later by the U.S. Supreme Court's decision in Obergefell v. Hodges, 576 U.S. 644 (2015). While same-sex marriage is still fairly new, some couples who chose to marry after their rights were recognized have decided to divorce.

Same-sex and opposite-sex marriages go through the same divorce process in New Jersey, and same-sex couples enjoy the same rights as opposite-sex couples. This means that a couple going through a same-sex divorce in New Jersey will need to contend with many of the same issues as a couple going through an opposite-sex divorce concerning property division, asset and debt division, alimony, child custody, and child support. However, there are some unique factors that couples going through a same-sex divorce might need to consider since the right to marry has only been recognized in the state since 2013. Here is an overview of the special considerations that might factor into a same-sex dissolution from a divorce lawyer in New Jersey at the Ziegler Law Group.

Division of Assets, Debts, and Property in a Same-Sex Divorce

Division of Assets, Debts, and Property in a Same-Sex Divorce


New Jersey is an equitable distribution state for the division of property, debts, and assets in divorce cases. This means that courts divide the marital assets between spouses equitably or fairly instead of equally. Marital assets and debts include those accumulated by either spouse during the marriage. Assets and debts a spouse brought into the marriage are considered separate assets and are not included in the marital estate or subject to division in a divorce.

Divorcing same-sex couples go through the same asset-division process as opposite-sex divorcing couples in New Jersey. They can either negotiate a mutual agreement to divide their assets and debts or leave the decision up to a judge. However, the process can be more complex for same-sex couples who were in years-long relationships before they ever had the right to marry. Since marital assets only include those assets the couple accumulate during their marriage, this means that the assets accumulated during the years the couple was together and living as married before tying the knot are considered the separate assets of the spouse who obtained them rather than the marital assets of the couple. This means that any asset that was titled only in the name of one spouse before the marriage might be classified as that spouse's separate property instead of marital property, which might include the marital home, vehicles, art collections, businesses, and other valuable assets, regardless of how long the couple lived together before they were legally allowed to marry.

Transmutation is a legal theory that might be used to treat an asset as marital instead of separate property. This occurs when an asset has been jointly used by both spouses for such a long time that it is treated as if it is jointly owned by the spouses. However, courts do not have to use this legal doctrine when they divide property and assets. People going through same-sex divorces might need to be prepared for an unequal division of assets in their divorce cases when they lived together for years before getting married unless they can negotiate a fair division with the help of a divorce lawyer in New Jersey at the Ziegler Law Group.

Alimony and Same-Sex Divorce Cases


Alimony is another issue with unique considerations for divorcing same-sex couples in which there is a large disparity of income. Under New Jersey law, alimony typically won't be awarded for longer than the duration of the marriage. Since same-sex marriage has only been legal for around 10 years, this means that alimony might only be ordered for a limited period, if at all. This is true even if the divorcing couple lived together for years before they were allowed to get married. Their date of marriage might not reflect the length they were involved in a committed relationship that had all the trappings of marriage without legal recognition.

A same-sex spouse might be awarded alimony in a divorce, but the same rules that apply to opposite-sex divorces will also apply to same-sex divorce. Judges are likelier to award alimony when a marriage has lasted for a longer time to a lower-earning spouse as long as the other spouse has the financial ability to pay. However, since same-sex marriages in New Jersey are already limited in duration because of not being legal for very long, a same-sex spouse might have a more difficult time securing an award of alimony.

Judges do have discretion in making decisions about alimony. Some might add the extra years the couple lived together into the calculation while others won't consider anything except the years the couple was married. The general rule is that alimony will not last longer than the length of the marriage, which can be unfair for some same-sex spouses.

Child Custody


Couples who share children and go through divorces must contend with child custody and support matters. When an opposite-sex couple shares children that are biologically related to both parents, determining child custody is more straightforward than when a same-sex couple shares children. This is especially true when a child is biologically related to one parent but not the other and the other parent did not adopt the child. In cases in which only one parent is the child's biological parent, determining child custody can be more complex. Under New Jersey law, a parent with a biological relationship to a child will typically be favored over the parent without a biological relationship.

To avoid this potential problem, a same-sex couple might choose to go through the adoption process so that the non-biological parent will have equal parental rights in case the marriage ends. Same-sex couples who are going through divorces and who have been raising children together have to consider whether the law might have an adverse impact on them if they pursue custody while going through a divorce. This issue might be avoided if the couple has completed the adoption process or has negotiated a parenting and custody agreement. Even if you reach an out-of-court custody agreement, however, you will need to be prepared in case the other parent files a custody case later.

If the couple completes a second-parent adoption during the marriage, the custody case will be treated the same way it would be treated if the couple was heterosexual. In that case, both spouses will be treated as the child's natural parents and have equal parental rights in a custody dispute.

Settlement Agreements and Same-Sex Divorce Issues


The special issues related to same-sex divorce cases mean that divorcing spouses might be at a disadvantage if they leave the decisions up to the court. It is often best if the spouses can negotiate full settlement agreements to resolve all of the outstanding issues in their divorce cases to achieve an outcome that is fairer. Reaching a mutually agreed-upon settlement agreement can help to avoid many potential problems that could otherwise arise. Settling your case is also likelier to be less expensive than engaging in bitter litigation through the court process. An experienced same-sex divorce lawyer can work with you to understand the issues you are dealing with in your divorce and strive to negotiate a full agreement with your estranged spouse that protects your rights.

Talk to an Attorney


If you are preparing to end your marriage and had a long relationship with your spouse before your marriage, you should speak to an experienced attorney at the Ziegler Law Group as soon as possible. We can review your case and help you understand how the state's divorce laws might affect your case and your rights. Call us today to schedule a consultation at (973) 878-4373.

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