On October 10th of 2014, same-sex marriage was legally recognized in North Carolina. Shortly after, on June 26th of 2015, the U.S. Supreme Court followed in these footsteps by legalizing same-sex marriage in all 50 states. However, this decision did not arise without much controversy and opposition. In North Carolina alone, couples who had previously sought rights to same-sex marriage had been denied since 1996.
Nowadays, the attitudes towards homosexuality are quickly shifting towards acceptance and the prevalence of same-sex marriages are rapidly increasing, according to a study by the Pew Research Center. In fact, over 20 countries, not including the U.S., now legally recognize same-sex marriage. With these numbers rising, what does this mean for same-sex divorce? Will a divorce involving a same-sex couple differ from that of a heterosexual couple, and what divorce trends can be expected? This blog article will answer all of these questions, and more.
What Does a Same-Sex Divorce Entail?
Prior to the Obergefell v. Hodges case in 2015, which legalized same-sex marriage in all states, married same-sex couples were generally only allowed to obtain a divorce in jurisdictions that allowed same-sex marriages. When attempting to file for divorce in states that deemed same-sex marriage illegal, their case was automatically denied or refused for a hearing. This posed a significant challenge for couples, as divorcing in a jurisdiction where a couple does not reside creates countless issues.
Fortunately, this is no longer the case. Same-sex couples now have the right to divorce in any state in the U.S. As a result, a same-sex divorce in our modern day and age is no different from that of a heterosexual divorce. All states offer a no-fault or fault-based divorce process for same-sex couples, where the division of marital property, child support and custody arrangements, and other similar issues will be determined. The process of a same-sex divorce should be relatively straight forward and simple. However, depending on the situation, same-sex couples may face a few challenges.
Challenges of a Same-Sex Divorce
Due to the newness of legal same-sex marriages in all states, the process of obtaining a divorce can unfortunately be complicated, especially if a couple was married prior to same-sex marriage being legalized in their state. That is why it is extremely helpful to seek the help of a knowledgeable divorce attorney to avoid common challenges, navigate through any complexities, and ultimately make the process much smoother.
While exact laws and subsequent challenges vary by state, a few of these challenges include:
When a judge examines a couple’s case to determine if spousal support is necessary, the length of time that the marriage lasted is taken into consideration. Typically, the longer the marriage, the more likely the lower-earning spouse will receive support. However, if a couple cohabited for several years and even shared a joint bank account, but was prohibited the ability to get married until 2015, all of the years prior to the legal union would not be taken into consideration. While some courts will acknowledge the years prior to a marriage, others will not, which is unfavorable to the spouse seeking spousal support or alimony.
Child Custody and Support
Legal rules are continuously changing to better accommodate same-sex divorce cases, but that doesn’t mean all the kinks in the system have been thoroughly worked out just yet. As a result, determining all necessary aspects of child custody and support can be both messy and difficult depending on the situation. However, many of these challenges can be avoided by bypassing litigation and resolving these issues via mediation.
For same-sex marriages where both individuals are legal parents of the child(ren) with equal rights, determining child custody and support issues will be more straightforward and handled exactly like a heterosexual divorce.
However, in numerous cases, this is not so, and only one individual is the legal parent. Prior to the legalization of same-sex marriages across the country, many couples began a family without being legally married, meaning only one individual is technically the legal parent. Whether a child was only legally adopted by one party or is the biological child of only one individual, if the second parent is not legally the child’s parent, this is where complications arise. Due to these lack of rights, that parent cannot seek legal or physical custody whatsoever and rarely has an obligation to help support the child.
This can be difficult for an individual who has helped their former partner raise a child, but is not legally the parent, for whatever reason.
Unless amicably decided upon before entering a court, a judge will always equally divide the couple’s marital property and debts at some point during the divorce process. However, marital property is defined as anything obtained by either spouse during the marriage. So, in regard to a couple unable to pursue marriage until 2015 and subsequently in a domestic partnership for years prior to their marriage, what about the items purchased before the legal union? Based on the laws in place, all property purchased before the marriage is classified as separate property, meaning it will not be equitably split between both parties. This can certainly be unfair for some relationships, which is why some courts recognize this occurrence. However, not all judges are as favorable, meaning the division of property may only include what was purchased within the parameters of the legal marriage.
Ending Multiple Legal Relationships
In some cases, same-sex couples have more than one legal relationship, such as both marriage and domestic partnership. While some states decided to dissolve domestic partnerships when same-sex couples were married, others did not. For the states that did not dissolve them, this can create some challenges. This situation forces same-sex couples seeking a divorce to have to go through the legal hoops of ending two legal relationships before finalizing their divorce, which is always more tedious, costly, and time-consuming.
Will Divorce Rates for Same-Sex Couples Increase?
Although only predictions can be made regarding this matter, a prominent study in 2014 revealed that 2% of same-sex marriages in the United States end in divorce each year, which was the exact same percentage as that of opposite-sex marriages. Out of these same-sex relationships, it was also universally reported in several different studies, from Belgium to the Netherlands, that lesbian relationships divorce at a significantly higher rate than relationships between men.
Since those studies, more current data and statistics on this subject have yet to be published, meaning only time will reveal the direct answer to this question. These studies were also conducted before the legalization of same-sex marriages throughout the entirety of the U.S., so it will be interesting to see if the divorce rates skyrocket or remain the same. Some predict that with the significant increase of same-sex marriages, divorce rates will inevitably increase, while others think the opposite. However, until more findings are published, we can only assume that same-sex marriages will possibly end in divorce around the same rates, or even lower than, opposite-sex marriages.
If You Are Faced with a Same-Sex Divorce, Reach Out to Our Raleigh Divorce Attorneys for Assistance.
While the instances of same-sex marriage are rapidly increasing, some of these marriages do not end as well as others. If you or a loved one are faced with a same-sex divorce, it is best to reach out to an experienced and knowledgeable divorce attorney. With the newness of these rules and laws, it is best to receive assistance to avoid and understand the complexities involved, as well as obtain the best possible outcomes. For more information about same-sex divorce or for assistance with your divorce process, don’t hesitate to contact our Raleigh divorce law firm.
You can call us at (919) 263-5629 or complete the online contact form below.