New Jersey LGBT Lawyers

How Does New Jersey Treat Same-Sex Divorce?

From a legal standpoint, there is no difference between a same-sex divorce and a traditional divorce, as the law applies similar to both instances. When a couple, regardless of their sex, decide they can no longer be together, the law allows that to take place. However, same-sex marriage was not legal in New Jersey prior to 2013. Therefore, the process of dividing assets and even determining the custody of children can become more complicated, particularly for those couples who did not formalize their relationship prior to 2013.

Gay marriage became legal throughout the country in 2015 when the U.S. Supreme Court ruled 5-4 in the landmark United States v. Windsor case that the Defense of Marriage Act was unconstitutional. It subsequently blocked all state-level bans to gay marriage. In the aftermath, most civil unions converted to marriage, although some remained as such.

For those couples who were married after the state legalized gay marriage, they will follow the same policies and procedures as any other couple starting with the initial separation. Regardless of the type of marriage, New Jersey does not recognize legal separation, though it does recognize “divorce from bed and board.” This is the stage between legal separation and absolute divorce.

Those couples that choose to take this route usually do so to protect an ex-spouse who requires health insurance. Despite this connection, the couple still enjoy economic divorce at this stage, meaning one is not responsible for the other. However, if a couple wants this status, both spouses must agree to it, otherwise, a judge will reject the request.

If a couple chooses to separate, they will first sign a separation agreement that will specify living conditions and child custody arrangements, if necessary, on a temporary basis until the divorce is finalized. Many of these elements in this separation agreement could appear in the final divorce agreement.

New Jersey is a no-fault state, meaning that one spouse need not be assigned blame for the dissolution of the marriage. The couple can cite irreconcilable differences as grounds for a divorce. To file using this method, the couple must have experienced those differences for at least six months before they can file for divorce.

The state does allow for a person in a marriage to file for a fault divorce. These are necessitated by the actions of one of the two in the relationship that prompts the need to immediately end the marriage. These tend to be longer processes, as they are not a mutual arrangement. A few reasons for a fault divorce include:

Although there may be a need to file for a divorce, you should understand that you will have to prove the actions of your ex-spouse of which you are accusing them.

How Do I Deal with Child Custody?

The most emotionally-charged and controversial aspects of a divorce are those involving children. The ex-spouses must determine who will maintain custody, and what the family dynamics will look like going forward. The matter can become contentious when the ex-spouses do not have a good relationship with one another, leading to arguments and bitter feelings that can affect the children

Although child custody battles can get nasty among spouses of opposite sexes, it can become more complicated when it comes to a couple of the same sex. The issue can arise if there is a biological connection between one parent but not the other.

Even though the non-biological parent may have raised the child as their own, there is still a biological connection the other parent has that they do not. This can be a problem, as the law favors biological parents over third parties when it comes to custody disputes. Although the non-biological parent may be at a disadvantage in maintaining custody of the child, the same connection that prohibits them from sharing in custody will also protect them from having to make child support payments.

There are a couple of ways to avoid this legal problem. The first is through a mutual agreement between the ex-spouses. If they have a good relationship and come to an agreement on how to handle custody, the court will not interfere. A second method is if the non-biological parent goes through the legal process of a second-parent adoption. This is when the person legally becomes the child’s parent. If they go through this process and then if a divorce occurs, the court will consider them an equal parent despite no biological connection between them and the child.

In addition, the court will not grant custody to a spouse who is an unfit parent or has demonstrated a history of physical abuse on the child or the spouse regardless of any biological connection.

How Does Child Custody Work in New Jersey?

When the biological concern is addressed, child custody in a same-sex divorce is treated the same as a traditional divorce. There are numerous nuances to custody when it comes to children. There is legal custody, which refers to the parent or parents who have the right to make major decision on the child’s behalf such as medical, educational, and religion. There is also physical custody, which refers to where the child resides.

There are two main aspects of child custody:

• Joint custody: Under this agreement, both parents agree to share legal custody of the child. This means they will both make the major decisions together on behalf of the child. In terms of where the child stays, the two can agree to the child living with one parent while visiting the other or splitting their time equally.
• Sole custody: One parent makes all the important decisions for the child, and the other parent does not have a say.

When there is a dispute between the parents as to who should have custody and they are unable or unwilling to reach an agreement, the courts will step in. A judge will base their decision on what is in the best interest of the child. That means they will place the child in the home that has the better structure or the child can continue their education uninterrupted. If the child is over the age of 12, the court will take their opinion into consideration about with whom they would prefer to live.

Regardless of the custodial arrangement established between the parents, both parents are responsible for providing financially for the child. For purposes of child support, the custodial parent is the one who will receive the payments, whereas the non-custodial parent is the one who must make the payments. The judge will determine the monthly payments after the custodial parent makes a request. The payments must go only for the expenses specifically listed in the child support agreement. The custodial parent cannot use the payments for extraneous expenses or for their own personal use.

How Is Alimony Awarded in a Same-Sex Divorce?

New Jersey attempts to treat same-sex divorce similar to traditional divorce when it comes to alimony, but owing to the change in the law, that is not always the case. On its face, the court will use the same factors to determine alimony as it would in other divorces. Those factors include:

• The need and ability of the parties to pay alimony.
• How long the couple was married.
• The overall health of the spouses, including their age and physical and emotional well-being.
• Maintaining the standard of living to which the two have become accustomed without depriving one of these lifestyles over the other.
• The earning capacities, educational levels, vocational skills, and employability of the parties.
• How long the spouse seeking alimony has been out of the job market.
• The parental responsibilities for the children of the same sex-marriage or civil union.
• Calculating the time it would take an individual to obtain the necessary education before they are able to acquire a job where they can become self-sufficient.
• The amount each member of the relationship contributed to the relationship, including financial and non-financial contributions that went to the care and education of the children and interruption of personal careers or educational opportunities.
• Available income that is accessible to both spouses through investments.
• The nature, amount, and length of temporary support paid during the divorce litigation, if any.
• Any other factors that the court may deem relevant.

Given that the length of the relationship is a factor in determining the amount of alimony for which a person may be entitled, the date of when a couple officially got married could play a significant role in determining the amount of alimony. A couple might have been together for years but got married only after New Jersey legalized gay marriage in 2013. Therefore, the years they were married might not necessarily reflect the full life of a couple’s relationship.

How Are Assets Divided between Spouses in a Same-Sex Divorce?

Once again, if a gay couple is married following the legalization of the practice and decide to get a divorce, the state will treat that as it would a traditional divorce when it comes to dividing assets. It is preferable for the couple to divide their assets through a mutual agreement. However, if they are unable to reach that agreement, it will be up to the court to decide for the couple.

New Jersey engages in the equitable distribution of assets, meaning that the judge will divide the assets equally between the two spouses. It does not mean that each side is entitled to a 50/50 split of the assets regardless of what the name implies.

The complication comes again with those who were not married prior to 2013 but still living together. The law treats these individuals as single persons, meaning any property that an individual solely owned prior to the legalization of same-sex marriage and prior to the marriage itself could be classified as the sole property of that spouse and not considered a marital asset.

Couples seeking a divorce should be aware of this nuance in the law, as a couple could be living in a home together for more than 20 years, but if it is in one person’s name, the judge may see that home as that person’s property and not divisible between the couple on the dissolution of the marriage.

This is not always the case, as a judge could determine that an asset such as a house or car has gone through what is known as a transmutation process. Through this, a judge will classify an asset even if it is in one person’s name as a marital asset for the purposes of distribution.

Those who are seeking a divorce should understand that even if they do not share an asset with their spouse depending on the nature of that asset, a judge may rule it to be a marital asset. In addition, if there are assets that you shared with a spouse that are not in your name, you may not have access to those assets after a divorce.

Does the State Still Recognize Domestic Partnerships?

As stated, most civil unions converted into marriage after the state and the nation began to recognize gay marriage. In many instances, the state has treated civil unions and marriages the same in terms of how spouses were treated in relation to each other. Owing to that, those who were in a formalized civil union may still enjoy the same protections of their assets and alimony based on the beginning of that legal relationship.

Why Should I Choose Lyons & Associates, P.C.?

In addition to her extensive experience working with gay and lesbian individuals and same-sex divorce matters, Terry Lyons also holds a master’s degree in Social Work, which she utilizes to keep her clients grounded and assist them with moving on to the next phase of their lives. If you are seeking to change your relationship with your domestic partner or civil union spouse, please make sure you understand the issues you face so you can make informed, intelligent decisions.

Our legal team has extensive knowledge and experience to advise and represent you in same-sex couple litigation taking place in New Jersey. We manage all types of family law issues faced by same-sex couples, including registering your marriage from another state, divorces, domestic partnerships, civil unions, and other family law litigation involving gay and lesbian couples. We offer a broad range of gay and lesbian family law services, including:

• Civil unions.
• Domestic adoptions, including adopting your partner’s child.
• Domestic partnerships.
• Gay and lesbian divorce, including contested and uncontested divorce involving same-sex couples.
• Gay and lesbian support issues.
• Same-sex couples property division and distribution.
• Same-sex couples child custody and child support matters.

New Jersey LGBT Lawyers at Lyons & Associates, P.C., Can Help You through Your Same-Sex Divorce

It is emotional enough when you realize that a relationship to which you contributed so much comes to an end. Adding to your anxiety and stress is the fact that complications in the law can make basic matters such as dividing assets or determining custody of your children complicated. The New Jersey LGBT Lawyers at Lyons & Associates, P.C., can help you sort out these discrepancies and work with you to help you seek the resolution that you deserve. To learn more or to schedule a free consultation, call us at 908-575-9777 or contact us online. Located in Somerville, Morristown, and Freehold, New Jersey, we proudly serve clients in Somerset, Woodbridge, Morristown, Parsippany, Rockaway, Short Hills, Chatham, Randolph, Madison, and Morris Plains.