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New Jersey legalized same-sex marriages in 2013 after a tumultuous start. Superior Court Judge Mary Jacobson ruled in September of that year that same-sex couples could marry. Not so fast, said Governor Chris Christie. He filed an appeal. The New Jersey Supreme Court allowed Jacobson’s ruling to stand pending the appellate process, and Governor Christie ultimately withdrew his appeal. Same-sex marriages became legal in the state effective October 21, 2013.

Same-sex couples are now granted the same rights and are held to the same responsibilities as heterosexual couples, so it might stand to reason that there should be no great difference when couples divorce. But same-sex marriages have some unique considerations.

When Same-Sex Spouses Have Children

When same-sex spouses adopt a child together, issues of custody fall into place much the same as for heterosexual couples. Frequently, however, one spouse is the child’s biological parent, and this can create a wrinkle. Ideally, the other parent will adopt the child similar to situations where a stepparent adopts. This can help cover all bases. Otherwise, the situation can become complex and may require the help of an attorney to advocate for the non-biological spouse’s parental rights.

Property and Alimony Issues

Consider a couple who has lived together since 1996. They have a home and have amassed some other significant marital property. One spouse works while the other stays home with the kids. But they couldn’t legally marry until October 2013 when the law changed.  Had they been heterosexual, they could have married in 1996.

If the heterosexual couple should divorce in 2016, this is a long-term marriage by New Jersey standards. But the same-sex couple has only technically been married for three years, and this is most decidedly a short-term marriage under New Jersey law.

A spouse might make the argument in court that assets acquired before the date of the marriage are premarital and therefore not subject to distribution in a divorce. New Jersey is an equitable distribution state, which means property division falls to the discretion of the judge to some extent. No statute exists that assets must be divided 50-50 regardless of the length of the marriage as is the case in some community property states. However, most cases there is a 50/50 split of martial assets.

Alimony is also decided based in part on the length of a marriage. The same-sex spouse who didn’t work all those years – who might otherwise have been entitled to an alimony award – could possibly find himself or herself without financial support.

Dissolution of a Civil Union

On the bright side, New Jersey has recognized civil unions since 2007, and the law gives civil union partners the same rights and responsibilities as married couples. This can effectively roll the calendar back six years with regard to equitable distribution of property and issues of spousal support if the couple took the necessary legal steps to create a civil union. If they subsequently married when they were legally able to do so in 2013, an argument can be made that the marriage is actually longer than a few short years.

The issue of same-sex divorce is nowhere near as clear cut as its heterosexual counterpart yet. If you married in New Jersey after the 2013 ruling, speak with Peter Van Aulen if you’re considering ending your marriage to get a clearer understanding.

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