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Unique Complications of Same Sex Divorces in New Jersey


The end of any relationship once expected to last a lifetime can be traumatic. Beyond this are the practical concerns of how to go about untangling lives that were once interwoven. Same sex couples are no different in this regard, particularly since the 2015 U.S. Supreme Court ruling in Obergefell v. Hodges, which legalized same-sex marriage (and in turn, divorce) nationwide. But there are sometimes still unique challenges posed when it comes to LGBTQ divorces.

Thankfully, one of the most significant was recently resolved with another Supreme Court ruling, that of Bostock v. Clayton County. In that case, the majority held that the provision of Title VII of the Civil Rights Act of 1964 that prohibits employment discrimination on the basis of sex extends also to one’s sexual orientation or gender identity. What does this have to do with New Jersey divorce? Consider that while same sex marriages and divorces are legal, they are also public record. New Jersey has barred LGBTQ employment discrimination since 1992, but record of a divorce or marriage (legalized in this state in 2013 by the New Jersey Superior Court’s ruling in Garden State Equality v. Dow) could impact both parties’ employment prospects.

Even so, there are still some complications specific to separating LGBTQ couples, which is why working with an experienced Monmouth County divorce lawyer is imperative.

Property Division After Dissolution of Domestic Partnerships, Civil Unions

Although you and your spouse may be currently married, there is a good chance you weren’t legally married until 2013 or 2015 (unless you were wed in a different state). If you were living together for an extended time prior to that, division of property may not look quite the same as it does for those who were married. That is because typically so much of how property is divided depends on the date of your marriage. Dividing assets/debts acquired during that time – bank accounts, credit cards, real estate, vehicles, etc. – will be trickier if there was no formal union in place during that time, as the state does not recognize common law marriage.

What might help is a formal domestic partnership or civil union. New Jersey began recognizing registered domestic partnerships with limited rights in 2004 and civil unions in 2007.

The Domestic Partnership Act allows same-sex couples over 18 (and opposite-sex couples over age 62) to join a domestic partnership granting: The right to decide about medical treatment and to visit in hospitals, certain tax benefits, public employee benefits and inheritance. Both must share a common residence and agree to be jointly responsible for each other’s basic living expenses. If the domestic partnership is terminated, one can be ordered to pay “palimony” for a window of time. However, domestic partnerships don’t approach the broad array of rights and obligations afforded to married couples.

The Civil Union Act in 2007 allowed for civil unions, including a provision to recognize other states’ civil unions. Under this provision, same-sex couples in a civil rights union could expect to be afforded most all of the rights given to married couples under New Jersey state law, including rights relating to joint ownership of property. However, they were not entitled to the more than 1,100 rights married couples enjoy under federal law (thanks to the Defense of Marriage Act, which was struck down in 2013).

Although courts will look at the beginning date of a domestic partnership or civil union, division of property acquired during that time may be more complicated than a legal marriage.

Child Custody and Child Support

The existence of these second-tier statuses of domestic partnerships and civil unions can create some complications not only with property division, but with child custody as well.

Securing legal relationships with your children is essential for LGBTQ couples – whether married or not. In general, if both partners to a civil union had formally-recognized parent status to children prior to the civil union (secured by either joint or second-parent adoption), that status would not be changed by the civil union. However, if one parent in the civil union didn’t have formally-recognized parent status, he or she could be considered a stepparent, but formal legal parent status can only be done through adoption. (It’s imperative – if you haven’t already – to talk with a family law attorney to secure legal parenthood through second-parent adoption.)

If you have questions about LGBTQ separation, divorce or adoption in New Jersey, our Monmouth County family law firm can help. We continue to offer free initial consultations over the phone and via video conferencing.

Contact us at (732) 810-0034 or email us through our website.

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