In a landmark decision, the Supreme Court ruled that state bans on same-sex marriages were unconstitutional. The right to marry carries with it the right to same-sex divorce. The ruling ushered in some legal confusion for LGBTQ+ couples with civil unions, along with other family law complexities.
If you are considering pursuing a same-sex divorce in North Carolina, the experienced family law attorneys at Greene Wilson Crow & Smith, with their in-depth understanding of family laws in North Carolina and a proven track record of providing skilled legal representation to clients in the LGBTQ+ community, are here to help.
Same-Sex Divorce Laws in North Carolina
Under North Carolina laws, all divorcing couples, whether they are same-sex or not, are subject to the same laws. To file for divorce, at least one of the spouses must have resided in North Carolina for at least six months, regardless of the state where the marriage license was issued. The couple must undergo at least one year of separation before one spouse can file the divorce petition.
At the time they separated, at least one individual needs to have intended to pursue divorce or a permanent breakup of the marriage. However, during the separation, a couple may attempt to resolve their marriage issues before finalizing their divorce.
Division of Property in a Same-Sex Divorce
Property division in a same-sex divorce can be complicated, especially for couples who own significant assets. North Carolina family courts have the right to dissolve any property belonging to the divorcing couple if they can’t agree on how to divide it between themselves on their own. Courts in North Carolina are not required to divide the couple’s community property equally between the spouses. However, the process is designed to be fair and just, with many judges starting with the presumption that it should be divided equally.
The court will only divide marital property that one or both spouses earned during the marriage. Marital property also includes interest earned during the marriage. Disputes can arise as to whether property is considered separate or community. For example, suppose a spouse inherits money or real property during the marriage. The inheritance will usually be considered separate property and not subject to division.
The same goes for retirement accounts that were contributed to before or after the marriage. Additionally, if the debt was not incurred for a marital purpose, it may be considered separate property and not subject to division. Working with an attorney to help you negotiate a fair property division is crucial.
Child Custody Issues in Same-Sex Divorces in North Carolina
Child custody matters can create unique complications for same-sex couples pursuing divorce in North Carolina. North Carolina does not have a presumption as to which parent should be the child’s primary caretaker. Instead, judges make child custody decisions based on the child’s best interest. When both parents’ names are on the child’s birth certificate, the same standard will apply to the couple’s custody determination as it would to a heterosexual couple. There are two main types of child custody: physical and legal.
Physical custody refers to which parent is physically with the child. In contrast, legal custody refers to the ability to make decisions about the child’s education, health, activities, and other aspects of the child’s life. Judges are inclined to allow both legal parents to remain in the child’s life and actively participate in raising them. However, if they determine it isn’t in the child’s best interest to stay in contact with a parent for safety reasons, they may give one parent full physical and legal custody over the child.
Pursuing Custody As a Step-Parent
The landscape for making child custody decisions for same-sex couples is still somewhat complicated. For example, if one spouse is the legal guardian of the child and the other spouse isn’t, it will be difficult for the spouse who doesn’t have legal custody to maintain access to the child after the divorce has been finalized. If your partner is the child’s biological parent, and you haven’t already legally adopted the child, you will need to pursue a stepparent adoption. Without your name on the birth certificate and without having legally adopted the child, it will be challenging for you to secure custody or visitation.
Given the complexity and unsettled nature of the law in this area, it’s crucial to speak to an attorney as early as possible before deciding to separate. This will give you more time to create a strategic plan for pursuing custody based on the child’s best interests.
Divorce for Cohabitating Same-Sex Couples
What happens when same-sex couples have been cohabitating for a long time and are considered common-law married in North Carolina? This may be the case, especially if you and your partner started your relationship before same-sex marriage became legalized. North Carolina courts no longer recognize common-law marriage but may recognize some common-law marriages established in other states.
Couples may wonder if they should use the date they started cohabitating as the date they were able to marry legally. Still, in North Carolina, judges only consider the date of legal marriage as the beginning of a marital relationship. If you have questions about separating your assets after cohabitating for a long time, speaking to an attorney is one of the best steps you can take.
Contact a Same-Sex Divorce Attorney in North Carolina
Family law matters involving same-sex couples continue to evolve. Unfortunately, some prejudice and discrimination still exist. The New Bern divorce attorneys at Greene Wilson Crow & Smith are committed to providing all of our clients with compassionate, diligent legal representation. We will work tirelessly to protect your rights and pursue the best outcome possible in your case. Don’t hesitate to contact our compassionate and knowledgeable attorneys to schedule an initial case evaluation.