Same-Sex Divorce in New Jersey: Things to Consider

Same-Sex Divorce in New Jersey

Although same-sex marriage in New Jersey is relatively new, there are some couples of the same sex who desire, for one reason or another, to end their marriage. Because couples in same-sex marriages enjoy the same rights as couples in opposite-sex marriages under New Jersey law, the divorce process is generally the same. So, generally speaking, same-sex couples undergoing divorce in New Jersey have to consider many of the same things as opposite-sex couples undergoing divorce. However, because same-sex marriage was only legalized in New Jersey in October 2013, there are certain considerations that only those in same-sex marriages must consider, especially if the relationship predates the legalization of same-sex marriage.

Property Rights and Division of Assets

In New Jersey, all marital assets must be divided between the divorcing spouses before the divorce is finalized. This may either be done by mutual agreement, or if an agreement cannot be reached, by a judge. If a judge is dividing the assets, then he or she will use a process called equitable distribution. This process allows a judge to consider certain factors, and based on those factors, divide the marital property between the two spouses. While the name may suggest it, equitable distribution does not mean that all of the assets will be split evenly between the couple. Rather, based on certain factors, the judge will determine which spouse will get what item in the divorce.

When same-sex couples get a divorce, they must undergo the same process of dividing assets by mutual agreement or be subject to an equitable distribution determination by the judge. However, division of assets among same-sex couples may be more complicated because the couple, although living together before the legalization of same-sex marriage, were considered single persons under the law unless they were in a civil union or a domestic partnership. This means that any items each spouse owned solely in their respective names both prior to the legalization of same-sex marriage and prior to the marriage itself may be considered the sole property of that spouse and not considered a marital asset. For this reason, same-sex couples undergoing divorce must be cognizant of the fact that anything solely in the name of one spouse before the marriage and before legalization of same-sex marriage in New Jersey may be seen by the judge to be the individual property of that spouse and not marital property. This may even be the marital home that you and your spouse have lived in for 15 years prior to marriage.

Nevertheless, if an item like a home has been used by both parties for a sufficient period of time and it has been treated as if it is co-owned by the spouses, then New Jersey judges may determine that the item, although solely in the name of one spouse, is marital property by way of what is called transmutation. Judges do not have to employ the doctrine of transmutation when dividing property among spouses, so same-sex spouses must prepare themselves for the fact that they may not get an asset that was solely in the other spouse’s name prior to the divorce when undergoing the divorce process.

Child Custody

When couples who have children together get a divorce, an ancillary claim raised in the divorce complaint is custody of those children. With opposite-sex couples who share biological children together, custody determinations are more cut-and-dry as both parents are seen as having the same claim to custody as one another. However, this is not the case with all same-sex couples who are raising children. Given the nature of the relationship, it is unlikely that same-sex couples will both be the biological parents of the children in their household. Rather, only one of the spouses may be the biological parent. If this is the case, then child custody determinations may be a bit more complicated because New Jersey law dictates that biological parents are to be favored over third-parties in custody disputes.

For this reason, same-sex couples who are raising children together but are undergoing divorce need to consider how the law will either favorably or adversely impact them if they sue for custody of the children in divorce. Oftentimes, this consideration can be avoided if the spouses come to a mutual agreement as to custody. Nevertheless, this consideration should not be dismissed because your ex-spouse may decide to sue for custody of the children even after you arrive at an out-of-court mutual custody arrangement.

Of course, custody disputes between divorcing same-sex couples are treated the same way as custody disputes between divorcing opposite-sex couples if the same-sex couple get what is called a second-parent adoption during the marriage. In this context, a second-parent adoption occurs when the non-biological parent goes through the legal process of becoming the parent of a child born to his or her partner. If a second-parent adoption has occurred, then both spouses are treated as the natural parents of the child and are considered as equals in custody disputes.

Contact a Moorestown Family Law Attorney for a Consultation About Same-Sex Divorce in New Jersey Today

If you are thinking about filing for a same-sex divorce, or if you have already started the divorce process and are dealing with another matter such as child custody, child support, or division of assets, you need to speak with a qualified attorney. The New Jersey family law attorneys at Cordry Hartman, LLC represent clients throughout the state, including Moorestown, Mt. Laurel, Camden, and Voorhees. We understand how challenging this time can be for you, which is why we will fight hard to protect your interests, and the interests of your loved ones, throughout the legal process. Call us at (856) 235-4511 or fill out our confidential contact form to schedule a consultation. We have an office conveniently located at 505 S. Lenola Road, Suite 224, Moorestown, New Jersey 08057.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.