Same-Sex Divorce

Since October 21, 2013, the State of New Jersey has recognized the right of same-sex couples to legally marry. Prior to that, same-sex couples only retained the right to enter into “civil unions” or “domestic partnerships.” Each of these legal relationships has certain rights attached to it, including the right to legally dissolve it. For a marriage, however, divorce is the means provided by law for terminating the legal bond. If you would like information, advice, and assistance in seeking a divorce from a same-sex spouse, Bergen County same-sex divorce lawyer Howard B. Leopold can assist you. He has gained extensive experience in a broad variety of family law matters over a period of more than two decades, and he can apply his knowledge and experience to your situation.

On the surface, it may seem that there is no reason that same-sex divorces should be treated any differently from divorces generally. But same-sex marriages may present a few unique wrinkles. For example, some same-sex spouses had pre-existing civil unions or domestic partnerships before their marriage, and they married as soon as marriage was legally available to them. Also, different states recognized same-sex marriages at different times and, in some cases, prior to when New Jersey recognized such marriages. These special facts suggest that there may be unresolved questions about how New Jersey law will treat the validity and duration of a same-sex marriage, particularly if it was executed in a different state prior to its legalization in New Jersey.

Many same-sex couples entered into other types of partnerships, either civil unions or domestic partnerships, prior to when they got married, or they may not have had any formal relationship status because the state where they lived did not permit it. But the legal impediment to marriage may not have affected the character of the relationship. Given these facts, should courts ignore this pre-marriage period in determining the length of the marriage?

This issue matters because it affects alimony and the division of assets. Generally speaking, periods of cohabitation prior to marriage have not been included for the purpose of calculating alimony, and property acquired prior to marriage is the separate property of the party who acquired it. Since virtually all same-sex marriages have been of short duration, should the court look only at the date of the legal marriage or at some other date prior to that during which the couple cohabitated? Applying the general rule could lead to an inequitable result in a same-sex divorce if alimony is based only on the duration of the marriage, irrespective of the duration of the relationship, and if all assets acquired by each spouse prior to the marriage are deemed the separate property of that party. In other words, should the courts consider the date when the couple “would have married” if that option had been available, or only the actual marriage date?

Another complexity the law is likely to encounter is in the areas of child support and child custody. Since same-sex couples cannot conceive and bear children biologically, it is possible that only one spouse will have a biological relationship to the child. It remains to be seen whether the biological tie of one parent will or should weigh more heavily in making custody or support decisions.

Divorce law is nearly always in flux and development, even though some critical issues have been resolved as a result of years of litigation and legislation. But a same-sex divorce, being a recent legal development, may raise unique questions and issues. It is important to determine whether your situation raises issues that require special consideration. Contact Bergen County same-sex divorce attorney Howard B. Leopold at (201) 345-5907 or online for a free consultation. He proudly represents people who need a family law attorney throughout Bergen, Essex, Passaic, and Hudson Counties, including in Hackensack, Englewood, Bergenfield, Cliffside Park, Dumont, Edgewater, Elmwood Park, Fair Lawn, Fairview, Fort Lee, Franklin Lakes, Garfield, Glen Rock, Hasbrouck Heights, Hillsdale, Little Ferry, Lodi, Lyndhurst, Mahwah, New Milford, North Arlington, Oakland, Palisades Park, Paramus, Ramsey, Ridgefield, Ridgefield Park, Ridgewood, River Edge, Rutherford, Saddle Brook, Teaneck, Tenafly, Wallington, Westwood, Wyckoff, Jersey City, Paterson, and Newark.