On September 27, 2013, the New Jersey Supreme Court handed down its decision in Garden State Equality v. Dow. 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 experienced legal representation. 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