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Same-Sex Marriage

Last June, the Supreme Court legalized same-sex marriage in all 50 states in the landmark Obergefell v. Hodges decision. While gay couples in North Carolina had already won their right to marry after the 2014 U.S. District Court ruling in General Synod of the United Church of Christ v. Cooper, the decision in Obergefell still made a massive impact in our state and everywhere else — same-sex couples can now marry anytime, anywhere, and in any state without worrying that their marriage won’t be recognized elsewhere due to differing state laws regarding gay marriage.

While Obergefell stripped away the complicated patchwork of state statutes on same-sex marriage, it has created a whole new host of legal concerns for same-sex couples, especially those who marry and then later decide to divorce. Since a full legal marriage has only been an option for gay couples in North Carolina for about two years (and less in some other states), these couples may not have had time to familiarize themselves with some of the family law issues that now apply to them.

Below, we’ve outlined the basic facts about some of the most important issues facing gay couples in North Carolina.

Does Long-Term Cohabitation Matter When Same-Sex Couples Divorce?

Some of the most memorable images and stories that circulated in the media following the legalization of same-sex marriage in North Carolina — and later across the country at large — came from gay couples who had been engaged in long-term domestic partnerships that functioned much like a traditional marriage, lacking only the legal sanction of a marriage certificate. For example, the Charlotte Observer highlighted the story of Cathy Fry and Joanne Marinaro, a lesbian couple who had been together for 28 years and drove to the courthouse for a marriage license on the first day after the 2014 ruling in North Carolina.

But what happens when such couples later decide to divorce? Even though most news stories covering the legalization of same-sex marriage tended to focus on the “happily ever after” accounts, the reality is that gay couples face the same challenges as other couples when it comes to navigating difficulties in their finances, family structure, and personal lives. Do such couples, if they decide they need to separate, receive consideration under the law for the years of domestic partnership during which they had no legal option to marry?

The short answer is that, in North Carolina, a family court will consider a same-sex couple’s marriage to begin on the date they were legally married — regardless of any period of cohabitation leading up to that point. This means that same-sex couples who decide to divorce should prepare for the court to consider the actual date they were married as the date they began to accumulate marital property.

Same-sex couples in North Carolina may wonder whether they could have a common law marriage if they lived together and acted as a married couple for a long enough period of time. The simple answer is “no”; North Carolina isn’t a common law marriage state, although it will recognize common law marriages that were established in other states.

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Other Family Law Considerations for Same-Sex Couples

Besides wondering about the date their marriage begins for family law purposes, gay couples may want to know how federal law and state statutes in North Carolina will affect them in a divorce or other family law matter. Here are some of the most important things to note:

  • Same-sex couples in North Carolina should understand that when it comes to marital property, our state is an equitable distribution state (as opposed to a community property state). This means that the court will divide the couple’s assets “equitably” (which is not necessarily the same thing as “equally”) based on a number of different legal considerations. In general, equitable distribution states allow the judge in a family law case wide latitude to decide who gets what.
  • Same-sex couples who marry and then break up need to divorce if they want to finalize the end of their marriage. This may seem obvious, but prior to 2015, some gay couples could have faced a situation where they married in a state that allowed same-sex marriage and then moved to a state that didn’t recognize the validity of the marriage, thus making it difficult to obtain a divorce. Spouses need to understand that, absent a formal divorce, they are still legally married, and any assets or property that they accrued prior to separation is still part of the marital estate in the eyes of North Carolina law.
  • The new federal standard that allows same-sex couples to marry anywhere also means that gay couples are legally allowed to adopt a child together as a married couple, and any state will recognize the legal status of that adoption. If both parents legally adopt a child as a married couple, then they will generally retain their full parental rights in the event of a divorce and will have to come to a custody arrangement, either by mutual agreement or in court.

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

  • If only one parent in a same-sex marriage has status as a legal parent, whether due to a biological relationship with the child or a legal adoption, the other parent needs to understand that they may not have any legal rights as a parent in the event of a separation. This holds true even if they have been acting as a parent for practical purposes for a long period of time — unless they can prove to the court that the biological parent has acted in a manner inconsistent with their parental rights. For parents in a same-sex relationship who aren’t the biological father or mother of a child, only a formal legal adoption will confer status as a legal parent.

These are just a few of the issues that same-sex couples now have to navigate when it comes to family law; all of the different legal considerations that could come into play during a divorce or other family law matter are too numerous to list here. In general, if you’re in a same-sex relationship and are considering adoption or facing divorce, it’s critical that you consult with an experienced family law attorney who can explain your legal rights and options — and who can advocate for you based on an extensive knowledge of the law.

Myers Law Firm Is Here to Help with Your Family Law Issues

At Myers Law Firm, we understand that the end of a marriage is never an easy time for either spouse, so we approach every family law case with compassion and understanding to search for solutions. While we excel at respectful negotiation and will work to find common ground with the other side, we are ready to stand up in court and fight for your rights with an aggressive approach if that’s what it takes.

The attorneys at Myers Law Firm have experience handling all of the major family law issues that surround the end of a marriage, including alimony, child custody, child support, property division, and divorce. We’re here if you need help. To get in touch with us, call our offices at 888-376-2889 or fill out the contact form on our website.


Gordon, M. (2014, October 10). Federal judge overturns NC same-sex marriage ban. The Charlotte Observer. Retrieved from http://www.charlotteobserver.com/news/local/article9200495.html

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

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