Divorce in Same-Sex Marriages
Same-sex marriage has been legally recognized in North Carolina since 2014. Since then, same-sex couples have been able to get married just as other couples can. As of 2021, there are 33,543 same-sex marriages in North Carolina. As with any marriage, same-sex marriages can sometimes end in divorce. In North Carolina, spouses are to divide property and assets in an equitable manner. There may be some specific issues that arise in divorce between same-sex couples.
Equitable Division of Property
In any divorce in North Carolina, couples are required to divide their marital property equitably. Marital property includes any property or assets the couple acquired after they wed. Generally, property that one spouse owned prior to marriage is separate property and is not included in marital property. However, because same-sex marriage has only been legal for a decade, it is possible that some couples were living together as if they were married for a much longer period of time. This can make the division of property more challenging for same-sex couples.
If the couple was together for a long time prior to getting married, they may own a house or other property together. Spouses may each have accumulated funds in a retirement or pension account that may be considered divisible assets. The couple may also have made large purchases together, such as for furniture or vehicles. Generally, these purchases are only considered marital property when they were made after the date of the marriage.
Biological Children
When it comes to children, divorcing couples typically need to decide where the children will reside and how visitation will work. Generally, both parents have legal custody and are able to make decisions on behalf of the child, such as those regarding health care, education, and religion. The children usually live primarily with one parent while the other parent has regular visitation and provides child support payments.
When same-sex couples divorce, the status of their children can become quite important. Under the law, the biological parent is a parent who contributed an egg or sperm to the conception. A parent who gave birth to the child may be the only legal parent under some conditions. If the other parent did not legally adopt the child, the non-biological parent will not have any legal rights regarding custody or visitation. This can make for a very challenging situation that will require legal guidance.
Challenges in Same-Sex Divorce
When couples decide to divorce in North Carolina, they must live apart for at least a year. Although it is not required, it can be beneficial to have a separation agreement. The separation agreement is a document that parties negotiate to include the terms of the settlement. A separation agreement is particularly helpful in same-sex divorces. There are many challenges that are unique to same-sex divorce, which couples must deal with, even when they do not have a separation agreement in place.
Separation and divorce can be difficult, especially when it comes to same-sex couples. It is helpful to seek assistance from an experienced divorce attorney as soon as possible in the process. To learn more about the legal issues regarding divorce, contact us at Arnold & Smith, PLLC, at (704) 370-2828 to schedule a consultation.
The family law practice group at Arnold & Smith, PLLC includes two Board-Certified Family Law specialists and one Child Welfare Law specialist, as well as several attorneys with many years of family law experience that are committed to providing a powerful voice to individuals facing the often-tumultuous issues in this area of law. The range of issues our family law clients may be facing include pre- and post-nuptial agreements; separation agreements; post-separation support; child support (both temporary and permanent); absolute divorce; divorce from bed and board; military divorce; equitable distribution of assets; child custody (both temporary and permanent); retirement benefits and divorce; alimony and spousal support; adoption; and emancipation. Because this area of the law is usually emotionally charged and complicated, the family law attorneys at Arnold & Smith, PLLC act with the utmost dedication to ensure that each client understands his or her options, and then act to achieve the best result possible for that client’s particular situation.
Source:
https://www.nccourts.gov/help-topics/divorce-and-marriage/separation-and-divorce
https://www.law.cornell.edu/wex/same-sex_marriage
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