LGBT DIVORCE: SPECIAL ISSUES

On September 27, 2013, the New Jersey Supreme Court handed down its decision in
. In that case, the plaintiffs alleged that New Jersey marriage laws violated
the constitutional rights of same-sex couples by failing to provide them
with equal protection, as is required by the 14th Amendment to the United
States Constitution. The New Jersey Supreme Court agreed, ultimately putting
a stop to the state’s denial of marriage rights to same-sex couples
in New Jersey. The United States Supreme has since followed suit and indicated
that all people in this country are entitled to marry the person of their
choosing, regardless of gender.

Unfortunately, along with same-sex marriage often comes same-sex divorce.
The issues of same-sex divorce are often identical to those of divorce
of a heterosexual couple. In other words, there are issues of property
division, asset division, spousal support, and child custody that need
to be addressed. As in a divorce for a heterosexual couple, all of these
issues must be addressed by the final divorce order.

Child custody is often the issue that can be the most complicated. If you
and your spouse have adopted a child, then the issues of custody are really
no different than for a heterosexual couple. A complete adoption means
that in the eyes of the law, the situation is no different than if the
child is biologically both yours and your spouse’s. Therefore, issues
of custody and visitation will be decided on what is in the child’s
best interest. If, however, one spouse is the child’s biological
parent and the other spouse has not completed an adoption, the issue of
custody and visitation can become very complex and requires expert legal advice.

Property division can also be complicated in a same-sex divorce. It is
not uncommon for a couple to have been living together and functioning
as a married couple for many years before they were allowed to marry under
New Jersey law. The problem then becomes whether property acquired before
the couple was allowed to marry, but during the time they acted as a married
couple should be equitably divided in the divorce. New Jersey law states
that property will be divided equitably, which does not necessarily mean
50-50, and the court will look at a variety of factors.

A related issue is spousal support. New Jersey takes the length of a marriage
into consideration when making an award of spousal support. As New Jersey
has only recognized same sex marriage for a little over three years, that
could limit the amount of spousal support available. It is notable that
no New Jersey court has squarely addressed pre-marriage cohabitation in
this context, so many arguments are available to achieve a fair and equitable result.

When handling a same-sex divorce, it is important to have
. We are familiar with the sensitive and complex issues that can be involved
in same-sex marriages. Contact us today at (732) 479-4711 to discuss
your marital dissolution