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Same-Sex Marriage And Divorce

In 2015, the United States Supreme Court legalized same sex marriage in a landmark decision and since then many states, including North Carolina, have changed their marriage laws to accommodate the decision. With the legalization of marriage comes the legalization of same sex divorce, which has created challenges for lawmakers and attorneys nationwide as they determine how to best handle the split of a same sex couple.

Same sex divorce in North Carolina

In North Carolina, all divorcing couples are subject to the same laws. At least one person must have lived in North Carolina for at least six months, regardless of where the marriage license was issued. Each couple must go through one year of separation before they can file a petition for divorce, and at the time of separation, at least one person must have intended to make a permanent break in the marriage.  However, you may resolve all other issues arising out of your marriage prior to your divorce.

How are alimony determinations handled in a same sex divorce?

It’s often difficult to determine who is the supporting spouse in today’s society, particularly where both partners hold jobs and contribute to the financial wellbeing of their household. If you are considered the supporting spouse, you may be required to pay alimony, so long as your ex-spouse is considered to be dependent and so long as there is the ability to pay alimony.

It is possible to resolve your separation without an alimony obligation if both parties agree in a Consent Order or a Separation Agreement.  Additionally, some couples may have stipulations written into their prenuptial agreements that excuse each spouse from financial obligations to the other in case of a divorce.

Division of Property

In North Carolina, the marital dissolution laws allow the court to divide any property belonging to a divorcing couple if the couple cannot reach an agreement on their own. Although many people believe that a division of marital assets and debts is performed as an equal split between two spouses, this is not always the case, but it is the starting presumption.

Also, some property may have been inherited or given to only one spouse by a third party or some property may have mixed characteristics, as can often be the case with retirement accounts if they have been contributed to before and/or after the marriage.  Debt may not be marital if it was not incurred for a marital purpose.  Additionally, it may not be feasible for economic, legal or business reasons, to divide certain items of property, such as a family business.  In those cases, it may be more proper to offset the value of the business with other assets.

How is custody decided in a same sex divorce?

There is no presumption in North Carolina as to who shall be the primary custodian of a child.  Instead, North Carolina uses a best interest determination between two legal parents.  As a same-sex couple the landscape is still a bit complicated.  If both of your names are on the child’s birth certificate, the same legal standard will apply in your custodial determination.

If the child is biologically your partner’s child, you will need to consider a step-parent adoption to be on the same legal footing as the biological parent.  If you do not have your name on the birth certificate, there are precedential cases in North Carolina that may apply to your facts and allow you to seek custody/visitation based on the best interest of the child.  This area of law can be very complicated, so please seek legal counsel prior to separating.

Call an attorney

If you are considering divorcing your spouse or seeking child custody, you need the help of a family law attorney. At Parker Bryan Family Law, our Raleigh family lawyers are experienced in representing divorcing same-sex couples and parents in North Carolina.