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Same-Sex Divorce Can Be Complicated

Same-sex marriages have been legal in North Carolina since October 2014, and legal in every state since the US Supreme Court ruling 2015. 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. One point of contention: how to determine when the marriage began, and how that affects property division.

Same-sex marriages and domestic partnerships first started becoming legal at the turn of the 21st century, but at that time it was on a state-by-state basis. Many same-sex couples lived in domestic partnerships, cohabitation arrangements, or marriages that took place in other states before their state began recognizing and performing same-sex marriages.

While North Carolina law applies the same set of rules for marriage, separation, and divorce for any couple regardless of sex or gender, people in same-sex marriages may be more likely to encounter certain complications. If you are considering a same-sex divorce, there are some things you should know.

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

Following the legalization of same-sex marriage in North Carolina, some of the most memorable and heartwarming stories that circulated in the media came from gay couples who had been in long-term domestic partnerships for decades. These relationships were only lacking the legal sanction of a marriage certificate.

But what happens when such couples later decide to get divorced? The reality is that gay couples face the same challenges as opposite-sex couples when it comes to navigating difficulties in their finances, family structure, and personal lives. Do same-sex spouses, 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 for a same-sex divorce, couples should prepare for the court to consider the actual date they were married as the date they began to accumulate marital property.

It’s worth noting that the same rules apply to opposite-sex couples who lived together for a long time before getting married.

RELATED: How Does Separate Property Become Marital Property?

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Domestic Partnerships and Civil Unions

A same-sex couple preparing a meal and smiling at each other

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 gay marriage became legal, some states automatically converted civil unions into marriages, but others didn’t. The result is that if you got married while you were still domestic partners with another party, you may be in two legally binding relationships and will need to dissolve both.

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.

Spousal Support in Same-Sex Divorces

In a North Carolina divorce, spousal support (which is called postseparation support when it’s temporary and alimony 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 couples who got married out of state before 2014 but are now trying to get a same-sex divorce. The court should recognize the date of the marriage as the beginning of the marriage, even if it took place out of state, when it comes to spousal support.

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

Child Custody Battles in a Same-Sex Divorce

A same-sex couple enjoying family time with two children in their living room

One big difference from opposite-sex marriages is child custody. A same-sex couple may have to deal with different legal needs during a child custody dispute. There are some cases where one spouse may be the biological parent, and the other spouse may have adopted the child to become the legal parent. In other cases both parents become legal parents through adoption.

The bigger problems arise in the divorce process when the non-biological parent is not a legal parent.

RELATED: What Are the Grounds for Full Custody of a Child in North Carolina?

What Happens When Both Parties Are Legal Parents?

The nationwide recognition of same-sex marriage now means that for married couples, courts should handle child custody disputes and child support arrangements for legal parents in the same way as opposite-sex parents.

Same-sex parents can gain full parental rights by legally adopting a child. In North Carolina, this can only happen when the parties have married and the non-biological parent(s) adopts the child.

For same-sex couples who have married and the non-biological parent has adopted the child separate, both parents have equal rights to pursue custody.

Of course, just like between opposite-sex couples, your custody case will not be simple. Judges consider many different factors as they decide what child custody arrangement would serve the child’s best interests, and the resulting legal cases can be very complex and time-consuming. Likewise, child support considerations can also be complicated, just as with heterosexual couples who split up.

RELATED: What You Need to Know About North Carolina Child Support

What if Only One Party Is a Legal Parent?

If only one of you is the child’s legal parent, things suddenly become a lot more complicated and uncertain. In general, if you’re not a legal parent to a child, you won’t have any legal rights as a parent, including the right to seek physical or legal custody of the child. You also may not be able to seek visitation rights, and you usually won’t have any financial obligation to support the child, either.

Parents have a constitutionally-protected right to the control of their children, which prevents third parties from being able to seek custody from a parent or parents. However, this constitutionally-protected right can be overcome if a third party shows that the parent (1) is unfit, (2) has neglected the child, or (3) has acted inconsistently with their constitutionally-protected status.

For custody cases involving same-sex divorce, the “acted inconsistent with their constitutionally protected status” is the factor that is used the most. One way that a parent acts inconsistent with their protected status is by voluntarily creating a relationship with a third party that is “in the nature of” a parent-child relationship (in other words, by allowing everyone involved to act as though the third party is the child’s actual parent).

In at least one legal case since the Supreme Court marriage equality ruling, the parties had lived together for 20 months after the birth of the child. The court held that living together for that long as a family would be sufficient to show the legal parent acted inconsistent with their protected status.

Other Considerations for Same-Sex Couples

LGBTQ+ 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:

  • Any same-sex couple 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.

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 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.

RELATED: Is Everything Split 50/50 in a Divorce in North Carolina?

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 1-888-376-ATTY (2889) or fill out the contact form on our website.

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

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