If you were in a committed relationship before the legalization of your marriage and have not decided to separate, you may encounter some unique legal complexities. These complications can arise since your relationship existed in a legal gray area before it was formally recognized. This can lead to issues surrounding property division, financial support, and other matters that are usually straightforward in heterosexual divorces. Please continue reading as we explore what you should know about these matters and how our seasoned Middlesex County Divorce Lawyers can assist you.
How Do I End My Same-Sex Marriage?
First, it’s important to understand that in 2015, the Supreme Court ruled in Obergefell v. Hodges that same-sex couples have a fundamental right to marry under the Due Process and Equal Protection Clause of the Fourteenth Amendment. This ruling has also had various implications for same-sex divorce. The basic rules for same-sex divorce are the same as for all divorces. This means to pursue a divorce in New Jersey, you must meet the state’s residency requirements and provide a legally accepted reason for the divorce.
What Issues Can Arise During a Same-Sex Divorce?
While same-sex marriages have the same divorce rights as heterosexual couples, courts may encounter challenges when determining the official start date of the marriage. This determination is crucial for property division, child custody, child support, and spousal support. The primary issue lies in whether the length of the marriage should be calculated retroactively to include the time before the Obergefell ruling, which legalized same-sex marriage in all 50 states.
When it comes to property division, marital property generally starts accruing when the marriage states and is divided fairly between parties upon divorce. However, some same-sex couples utilized domestic partnerships because same-sex marriage was not available, and then tied the knot once it was made available. Now, if they pursue a divorce, courts may reach different conclusions about when the marital estate began. This means those living together and sharing their lives before marriage becomes legal, could result in an unfair property division.
Spousal support is another issue that can get complex in same-sex divorces. Gay spouses are typically entitled to spousal support when they get divorced under the same rules that apply to heterosexual divorces. The longer the marriage, the more likely it is that the judge will award this type of financial support to a spouse who needs it, as long as the other spouse can pay. The court may not consider a same-sex couple’s lengthy premarital cohabitation to determine spousal maintenance.
Furthermore, it can be more complicated for courts to determine custody arrangements in the context of same-sex couples getting a divorce. Depending on the circumstances, one partner may not have legal parental rights to the child, even if they have actively parented. This can lead to challenges in securing custody or visitation rights, unlike in heterosexual divorce where both parents are recognized as parents under the law. Nevertheless, the overriding principle in custody cases is what’s in the best interest of the child.
At Arndt, Sutak, & Miceli, LLC we are prepared to guide you through your divorce and onto a brighter future. Connect with our firm today for advice and skilled representation.
