In 2014, North Carolina joined the growing list of states allowing same sex couples to marry. The following year, the United States Supreme Court determined that no state could prevent gay marriage, making same sex marriages legal in all 50 states. However, while same-sex couples can legally marry and divorce, they still face unique challenges when it comes to property division, child support and custody, and spousal support. At the Olsinski Law Firm, PLLC, our Charlotte family law attorneys have extensive experience handling same sex divorce cases on behalf of our clients, helping them navigate this difficult—and often complex—process.
Specific Issues That May Come Up in a Same-Sex DivorceWhile, in theory, there should be no difference in how the court system treats a same sex couple, there are a few practical considerations that are important to keep in mind.
The Length of a MarriageCourts consider how long a couple was married when making several important decisions during a divorce case. Most notably, the length of a marriage can come into play when the court divides a couple’s property and when it sets out to determine whether alimony is appropriate. However, same-sex marriage was only legalized in 2014. Thus, there are many couples that formed prior to 2014 but were only formally recognized that year.
This can raise confusion. For example, typically, North Carolina courts assume that any assets acquired by either spouse during the marriage are marital property subject to equitable distribution. However, if a same sex couple has been together since 2004 but was only married in 2014, how will the court treat assets the couple acquired during the initial ten-year period?
Similarly, courts consider how long a couple was married when awarding alimony. Of course, if a couple has been together for 20 years but has only been legally married since 2014, it can result in a situation where the court isn’t crediting the full length of the relationship.
Of course, either of these issues can be resolved by entering a divorce agreement where the spouses work together to come up with a solution. However, doing so requires cooperation, which isn’t always easy to come by when a couple is divorcing.
Child CustodySame-sex couples also face potentially challenging issues related to child custody. For example, under North Carolina law, you must either be a child’s biological parent or adopt the child to have parental rights. For same-sex couples who adopted, the process is relatively straightforward, as both spouses are legally considered parents of the child. However, if one spouse gave birth to a child and the other spouse did not formalize an adoption, the spouse that did not give birth to the child may find herself without any parental rights. Of course, the court could permit a non-parent spouse to remain in the child’s life through an agreement with the biological parent or if the court determines that the child’s biological parent allowed the child to develop a relationship with the non-parent spouse. Still, this is a potentially thorny issue that can add to the stress that’s inherent in the divorce process.
Do You Have Questions About a Same Sex Divorce?If you are currently involved in a same sex relationship and are considering divorce, it is important that you consult with an experienced Charlotte divorce lawyer as soon as possible. A same-sex divorce case can be complex, and with so much at stake, it is imperative that you understand your rights and what you can do to put yourself in the best position possible. At the Olsinski Law Firm, PLLC, our knowledgeable same sex divorce lawyers have extensive experience helping LGBTQ+ clients through the divorce process, protecting their interests at every step of the way. To learn more, and to schedule a free consultation with a Charlotte divorce lawyer, give us a call at 704-405-2580. You can also reach one of our Concord family law attorneys at 704-918-4747. We represent clients in Mecklenburg, Gaston, Cabarrus, Iredell, Rowan, and Union Counties.