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Is Same-Sex Divorce Handled Differently?
In 2015, the U.S. Supreme Court ruled that same-sex couples could legally marry, which meant they could benefit from many of the same rights as heterosexual couples, including being covered by a spouse’s health care plan, taking advantage of tax exemptions and other protections. This also means that if a same-sex couple decides to get a divorce, the dissolution of their marriage will be treated the same as a heterosexual couple. As such, they will have to resolve issues like spousal support, custody issues, and the division of marital property. However, some complications may arise, particularly when a same-sex couple has children, and there are complex custody issues that need to be addressed. If you and your spouse are seeking a same-sex divorce, it is highly recommended that you contact an experienced divorce lawyer as soon as possible.
What Are the Most Common Issues That Arise During a Same-Sex Divorce?
Whether you and your spouse are heterosexual or part of the LGBTQ community, there are issues that you will need to resolve if you are in the process of getting a divorce. However, there are aspects of same-sex marriage that can make the process more complicated, including the following.
Division of Marital Property
New Jersey is an equitable distribution state, which means that marital property is divided in a manner the court deems fair, rather than an automatic 50/50 split. When it comes to determining property distribution, the court considers a range of factors, including the duration of the marriage, how much property and assets each spouse brought to the marriage, the age and health of each spouse, the standard of living that the couple enjoyed during the marriage, and both spouse’s employment status.
However, the courts may reach different conclusions about when a same-sex marriage started because the calculations may be more complicated. In addition, if you and your spouse had been living together and sharing your lives for years before same-sex marriage was legalized, this could result in an unfair division of property. For example, if your spouse purchased a vacation home before you were legally married, this would be considered separate property in a divorce and would likely be awarded to your spouse. This may seem unfair, mainly if you and your spouse spent equal time at the house together over the years and both contributed to upkeep and renovations. Some judges recognize the unfairness of the situation and will split the home’s value equitably between you and your spouse. However, judges have the authority to decide how a couple’s assets will be divided, so there is no guarantee that you will walk away from the marriage with property or other assets your spouse bought before you were married.
Child Custody and Visitation
When the court makes decisions regarding custody and visitation, their primary consideration is what is in the child’s best interest. In most cases, the courts find that children benefit from continuing to have a relationship with both parents. Most state laws follow the “paternity presumption,” which recognizes that the man who was married to the mother of a child born during marriage is presumed to be the child’s father. Following the Supreme Court decision in Obergefell and Pavan, this presumption also applies to the wife of a mother who used assisted reproduction and gave birth to a child during the marriage.
While the court’s priority is to make custody decisions that are in the child’s best interest, factors complicate the process. For example, the spouse who is not the biological parent of the couple’s children may have difficulty gaining custody. Depending on the circumstances, the spouse who is not the biological parent may be denied even limited custody or visitation rights. If the non-biological parent has legally adopted the couple’s children, there is a greater likelihood that they will be granted shared custody.
Spousal Support
The same rules apply to same-sex couples as heterosexual couples when it comes to spousal support. The longer you and your spouse are married, the more likely a judge will award spousal support to the spouse who needs it, provided the other spouse can pay. However, if you and your spouse were in a long-term relationship for years before you could legally marry, the spousal support agreement may not reflect the number of years you were together. A judge may not consider these circumstances when deciding on spousal support.
How Do I File for a Same-Sex Divorce in New Jersey?
Studies show that same-sex couples get divorced at a lower rate than heterosexual couples. However, that is not to say that they do not face many of the same problems that can cause a marriage to fall apart, including infidelity, financial disagreements, and communication issues. If you and your spouse have made the difficult decision to end your marriage, there are steps involved in the divorce process that must be followed.
You must meet the New Jersey residency requirements. You and your spouse must have lived in New Jersey for at least one year before filing for divorce. If you are filing for an at-fault, citing adultery as the grounds, the court may make an exception to this rule.
If you married in a different state when it was not yet legal to marry in New Jersey, you must get divorced in the state where you meet the residency requirements.
You or your spouse must file a Complaint for Divorce, which is then served to the other spouse by the sheriff, a process server, or their attorney. Do not send this document by standard mail unless your spouse agrees and signs a notarized document. The Complaint must include the names of both parties, the date and place of the marriage, and the grounds for divorce, although you only need to cite irreconcilable differences if you are seeking a no-fault divorce.
Once the documents have been served, your spouse has 35 days to respond by filing an appearance, an answer to the complaint, or a counterclaim.
Each party must file a Case Information Statement (CIS), which includes financial information about both parties relevant to issues like spousal support, child support, and equitable distribution.
At this point, you and your spouse may try to reach a settlement agreement. If a settlement cannot be reached, you may be required to participate in the Early Settlement Panel, which will discuss the legal issues you are trying to resolve and provide possible solutions.
If you do not accept the recommendations or cannot come to an agreement, you will be required to participate in mediation to work through your issues and reach a resolution.
If you are unable to resolve your issues during mediation, your case will go to trial, where a judge will review it and make a decision on the issues you and your spouse were unable to resolve during mediation.
Our Freehold Divorce Lawyers at Lyons & Associates, P.C. Advocate for Same-Sex Couples Who Are Going Through a Divorce
If you and your spouse have decided to divorce, do not hesitate to contact our Freehold divorce lawyers at Lyons & Associates, P.C. To schedule a free, confidential consultation, call us today at 908-575-9777 or contact us online. Located in Somerville, Morristown, and Freehold, we serve clients throughout Somerset, Woodbridge, Morristown, Parsippany, Rockaway, Short Hills, Chatham, Randolph, Madison, Morris Plains, and Monmouth County.