Few people contemplate divorce when they stand at the altar to say “I Do.” Unfortunately, the decision to end a marriage is a reality many people face, regardless of whether they are in a same-sex or opposite-sex relationship. Navigating divorce as a same-sex couple, however, may present some unique challenges. Knowing your rights and working with an experienced New Jersey divorce attorney like those at Rozin | Golinder Law is essential.
Marriage equality was first recognized in New Jersey in 2013 with the landmark decision Garden State Equality v. Dow, and later codified into state law with S3416. With the passage of the legislation in 2022, laws regarding marriage and civil union were to be read with general neutral intent, meaning they would apply to both same-sex and opposite-sex couples.
In addition to having the right to marry, same-sex couples also have the right to divorce. Parties in same-sex divorces must meet the same legal requirements as any other divorce, such as residency requirements and establishing grounds for the divorce. Although New Jersey still technically recognizes fault based reasons for filing a divorce, New Jersey is in fact a “no-fault” state – meaning the Court will not give you more or less based on the reason for the divorce. Thus, most people now cite irreconcilable differences as the reason for their divorce. Individuals seeking to file for divorce are encouraged to contact a divorce lawyer for same-sex couples.
Same-sex couples may face several unique challenges when filing for divorce in New Jersey. Due to the complexity of these cases, it is strongly recommended that a party seeking an LGBTQ+ divorce work closely with an attorney throughout the process.
Challenges that may arise during a same-sex divorce in New Jersey:
Under New Jersey’s same-sex marriage laws, courts will apply equitable distribution principles when dividing marital property. This means that the court will try to distribute assets and debts fairly, although not necessarily equally, between the parties. The court will consider several factors when determining what is fair, including the length of the marriage and each spouse’s contributions to it.
Long-term couples may face a unique obstacle if they acquired significant assets before marriage. A New Jersey divorce lawyer can help to ensure that your rights and assets are protected throughout the process.
Parents will have to navigate child custody, even in a same-sex divorce. A child born during marriage is presumed to be the child of both spouses; however, this presumption can be challenged.
A common issue that arises for same-sex couples when the presumption is challenged is establishing parentage, particularly when assistive reproductive technology is used. Providing documentation of adoption by a non-biological parent is often critical to protecting parental rights. A family law attorney can help establish things like custody arrangements, child support, and parenting time for same-sex couples.
While same sex couples are subject to the same requirements as any married couple when it comes to divorce, there may still be challenges calculating alimony or spousal support. One factor the court may consider when awarding alimony is the length of the marriage. The court may extend the length if the couple had a domestic partnership or entered into a civil union prior to same-sex marriage being legalized.
The dissolution of a civil union or domestic partnership is similar to the divorce process in that one party must meet residency requirements and file a complaint. With a dissolution, arrangements will be made for the allocation of debts and assets, child custody, and alimony.
There are several steps to protect your rights in a same-sex divorce in New Jersey. Following these steps can help ensure a fair resolution during these trying times.
Steps to protect your rights in a same-sex marriage divorce in NJ:
If you are considering filing for same-sex divorce in New Jersey, contact Rozin | Golinder Law at (732) 377-3367 for a confidential consultation. Our firm has over a century of combined family law experience and will work tirelessly to get you the best possible resolution in your case. We proudly serve clients throughout New Jersey in our Monmouth and Middlesex offices.
Yes. Spouses in a same-sex divorce have the same rights as those in an opposite-sex divorce. A contested divorce is generally more complex than one that is uncontested.
In general, assets acquired before legal marriage are not considered marital property and therefore fall outside the court’s distribution of assets. This can present challenges for same-sex couples who were in a long-term partnership prior to marriage. An attorney, well-versed in same-sex divorce, can help ensure that all qualifying assets are considered during the divorce.
The presumption of parentage is that both spouses are legal parents to a child born to a same-sex couple, even if one is non-biological. This presumption can be challenged and would then need to be proven through documentation.
