What Are the Unique Challenges of a Same-Sex Divorce?

In 2015, the United States Supreme Court made history when it legalized same-sex marriage in the ruling Obergefell v. Hodges. From the perspective of equality and human rights, the decision was monumental. It had significant legal implications as well, finally affording gay couples the same protections as heterosexual spouses, things such as health insurance, tax exemptions, and other benefits.

Although same-sex couples have the right to divorce in every state, the process can often be quite complicated.

Residency Hurdles Prior to 2015

Prior to the 2015 decision, 13 states did not recognize same-sex marriage. Therefore, gay couples who wanted to marry might visit a state that did, marry, and return home. That became complicated when couples who married out-of-state wanted to divorce.

Many states have a residence requirement that mandates couples must live there for a certain period before they can divorce. This was a significant hurdle for LGBT spouses with child custody, marital assets, and other divorce matters to resolve in their home state.

Obergefell v. Hodges also required states to honor same-sex marriages performed in other states.  But that did not eliminate all the hurdles to same-sex divorce.

Considerations When Seeking a Same-Sex Divorce

Here are some considerations for anyone in a same-sex marriage seeking a divorce:

Gray area with inconsistent state and federal laws. Obergefell v. Hodges was groundbreaking for LGBT rights, but plenty of gray area remains, especially in states that still have anti-gay marriage bans on the books. There are many federal regulations that play a role in the division of property and other assets, specifically those having to do with taxes.

But most of the procedures that make up the divorce process occur at the state level. Generally, federal law preempts state law, which potentially nullifies certain benefits the court may want to extend to LGBT couples. The problem lies in the differences between state and federal laws regarding same-sex divorce.

The union may be longer than it is on paper. Perhaps the most significant challenge same-sex couples face during divorce is the fact that the duration of their relationship is not always reflected on paper. Consider couples who were together well before the Supreme Court ruling on same-sex marriage came down in 2015. Although they may have been together since 2001, they have only been married since 2015.

Therefore, if the length of the marriage plays a part in how marital assets are divided, if and how much alimony is awarded, and other financial and legal terms, the problem becomes clear.

Divorce for a heterosexual couple married 20 years is going to be treated differently than a LGBT couple who were together for 20 years, but only married legally in 2015 when federal law changed.

Some states will consider long-term cohabitation, if the couple can prove through joint bank accounts and other financial and legal documents they have been a couple for longer than the marriage. But that happens on a case-by-case basis, and there is no guarantee.

When one spouse out-earns the other by a great deal, there is a lot at stake when it comes to presenting an accurate picture of the union, and who contributed what to the household.

Child custody and visitation outcomes vary from case to case. Same-sex marriage has been recognized federally for less than a decade. This area of law is still evolving; inevitably, there will be many landmark cases across the country in the years to come. This is especially true when it comes to child custody and visitation matters for same-sex couples.

We know there are many ways to create a family in 2022. Surrogacy, adoption, and fertility assistance all help same-sex couples become parents. However, they also complicate custody and support issues when it comes to divorce.

Even when both spouses are raising the child together, if one is the biological parent or has adopted the child, the nonlegal parent may have a battle defending their right to parent after divorce. They may have limited custody or visitation rights. They may also have no legal obligation to pay child support as well.

Gay marriage in peril as Supreme Court becomes more conservative. With Obergefell v. Hodges same-sex couples were afforded the right to marry and divorce in the United States. But legislative changes do not always reflect the sentiments of every citizen. Many want to turn back time and reverse marriage equality legislation.

In fact, two Supreme Court Justices, Thomas and Alito, have stated their opinion that honoring Obergefell v. Hodges may in fact pose a threat to other’s religious liberties. They specifically cite the case of the Kentucky county clerk who refused to issue a marriage license to a same-sex couple because of her religious belief that marriage is reserved for a man and woman.

Although the Supreme Court ultimately decided not to take the case, the Justices stated that although the clerk “may have been one of the first victims of this Court’s cavalier treatment of religion in its Obergefell decision, but she will not be the last.”

New Jersey and Same-Sex Unions

The state of New Jersey legalized same-sex marriage in 2013. Prior to that, the state recognized domestic partnerships as of 2004, and civil unions as of 2007.

What Is a Domestic Partnership?

A domestic partnership is not exactly like a marriage, but it does offer some of the same protections. In New Jersey, same-sex couples must be 62 or older, share a common residence, and share property and financial obligations, among other qualifications, to qualify for domestic partnership.

This arrangement has more limits than a marriage. For example, some insurance policies do not recognize domestic partnerships, and partners may have to file taxes separately, unlike married couples.

What Is a Civil Union?

A civil union is a legal relationship between two people that offers them certain legal protections on the state level. However, unlike same-sex marriage, a civil union does not provide any federal benefits or protections. Partners must be the same sex and at least 18 to enter a civil union in New Jersey.

LGBT couples who want to dissolve their domestic partnership or civil union generally follow the same process as married same-sex couples seeking a divorce.

How Do I Divorce My Same-Sex Partner in New Jersey?

As noted above, same-sex married couples follow the same process as heterosexual couples going through divorce in New Jersey. As a no-fault state, couples ending their marriage are not required to prove the other did anything wrong. Irreconcilable differences are sufficient for the divorce to be granted.

Most seasoned same-sex divorce lawyers will tell their clients the first step in the divorce process is to gather all important financial and legal documents. That includes pay stubs, tax records, financial accounts, and other investments.

The next step is a consultation with a trusted divorce lawyer who has a proven record of achieving good outcomes for same-sex divorce clients. The best way to determine if an attorney is a good fit is to schedule a no-cost consultation. There, you can explain your situation, learn about the firm’s approach to complex divorce matters, and find out your legal rights and options going forward.

Mediation as an Alternative to Litigation

Because of the gray area that remains in state and federal same-sex divorce laws, many LGBT couples find they are better served handling their divorce through mediation instead of in court.

Because it is more flexible than the court system, mediation can help couples sidestep some of the common hurdles they may face in court, primarily that their relationship may only be considered legal since 2015 even if they were together much longer.

Mediation can also ensure willing same-sex parents enjoy all the parental rights they seek, despite the fact only one parent may have legal custody of the child. Finally, mediation protects same-sex couples against judges who may have anti-gay bias, despite the law.

Mediation works only when both parties are open to the process, willing to compromise, and if children are involved, always willing to put their needs first.

Somerville LGBT Lawyers at Lyons & Associates, P.C. Help Clients Overcome Common Same-Sex Divorce Challenges

If you are considering divorcing your spouse and have concerns about your rights in New Jersey, the Somerville LGBT lawyers at Lyons & Associates, P.C. understand the issues facing same-sex couples and are ready to help. To learn more or to schedule a free consultation, call us at 908-575-9777 or contact us online. Located in Somerville and Morristown, New Jersey, we proudly serve clients in Somerset, Woodbridge, Morristown, Parsippany, Rockaway, Short Hills, Chatham, Randolph, Madison, and Morris Plains.