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Same-Sex Marriage and Divorce

Same-sex marriages have been legal in all 50 states for over four years. Unfortunately, having your same-sex marriage recognized as legal doesn’t always translate to receiving equal or fair treatment, and some same-sex couples are running into unique problems while seeking a divorce. The main point of contention: how to determine when the marriage began.

Same-sex marriages and domestic partnerships first started becoming legal at the turn of the 21st century but weren’t made universally legal in the United States until 2015. Many same-sex couples lived in domestic partnerships, cohabitating arrangements, or marriages that took place in other states before their state began recognizing and performing same-sex marriages.

While same-sex couples can and do get divorced, many are discovering that there are complications they didn’t foresee. Keep reading to learn more about some of the difficulties and considerations that same-sex couples may face during a divorce.

Domestic Partnerships and Civil Unions

Many same-sex couples entered into a domestic partnership or civil union because they were unable to marry, and these legal partnerships provided some of the state benefits of being married. When same-sex marriages became legal, some states automatically converted civil unions into marriages, but others didn’t. The result is that if you were married while you still had a domestic partnership or civil union, you are in two legally binding relationships and will need to dissolve both.

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In a North Carolina divorce, alimony (which is technically called postseparation support when it’s temporary and spousal support when it’s long-term) is financial support paid by a supporting spouse to a dependent spouse after separation. One of the factors a judge will look at when ruling on alimony is the length of the marriage.

For heterosexual couples, determining when a marriage began is easy. In North Carolina, however, same-sex marriage wasn’t legal until 2014, which complicates things for same-sex couples who got married out of state before 2014 but are now trying to get a divorce.

To put this issue in perspective, Massachusetts legalized same-sex marriage 10 years before North Carolina did. If a couple was married in Massachusetts and has since moved to North Carolina, a North Carolina judge should go back to the date of the actual marriage in Massachusetts. The United States Supreme Court decision that declared prohibitions against same-sex marriage invalid made all marriages valid.

However, if you had a domestic partnership or civil union, that may not qualify for the same status as a marriage. In that instance, you may not receive credit for the time before you were officially married.

RELATED ARTICLE: What North Carolina Same-Sex Couples Need To Know About Family Law

Division of Property

What counts as marriage also has a significant effect on the division of property in a divorce. Under North Carolina law, the accumulation of marital property begins on the date of marriage.

That raises the question: does property bought or obtained during a domestic partnership or civil union get divided equally as well? The answer is probably not unless the laws of the state later made the union a marriage. But what if the couple was in a domestic partnership at the time and later got married when it became legal? In this scenario, the court will most likely use the date of marriage as the starting point for determining what’s marital property and what isn’t.

Child Custody

Child custody issues in same-sex divorces can be especially complicated since North Carolina law has not kept up with the realities of potential issues involving married or unmarried same-sex couples.

Unless both partners have legally adopted the child, only one parent may be the natural parent or legal parent of a child under North Carolina law. If only one parent is the natural or legal parent, the other parent may have to proceed as a third party and seek custody by showing that the natural or legal parent has acted inconsistently with their constitutionally protected rights and obligations. This is a complicated area of the law, and you should speak with an experienced family law attorney about your rights if you find yourself in this situation.

RELATED ARTICLE: Custody Battles May Play Out Differently for Same-Sex Couples in North Carolina

Contact Myers Law for Help With Your Divorce in Charlotte, North Carolina

At Myers Law, we’ve handled same-sex divorce and custody cases for clients in Charlotte and Mecklenburg County, and we’re ready to advocate for you if you need us. We can fight back on your behalf against unfair court rulings and help you navigate the complications that North Carolina law can cause for same-sex spouses and parents.

If you have concerns about how a court might handle your same-sex divorce, get in touch with us today. Call us at 1-888-376-ATTY (2889) or complete our quick and easy online contact form to schedule your initial consultation.

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

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