Is Spousal Support Different in Same-Sex Relationships?

Reasons Spousal Support Is More Complicated in LGBTQIA Divorce

With the national legalization of same-sex marriage in 2015, over half a million LGBTQIA couples have chosen to get married. Unfortunately, some of these marriages can end in divorce. A divorce is almost always a highly and emotionally stressful time, and there are also some unique financial challenges you may face during a same-sex divorce.

Calculating Alimony Can Be Complex

One of the main reasons it can be hard to calculate spousal support following an LGBTQIA divorce is the fact that same-sex marriage was only legalized recently. For many couples, this puts them in an awkward legal situation. You can be married in all but name for decades yet have paperwork say your marriage only lasted five years.

This causes problems with alimony calculation because New Jersey takes length of marriage into account for deciding alimony. How long your marriage lasted can affect how much alimony the judge awards and how long the alimony order lasts. So even though one spouse might have given up their career to move to a new state with their partner years ago, this may not automatically be considered in alimony discussions.

There are no firm rules for how much same-sex spousal support a judge can award. Things are left almost entirely up to the discretion of the judge. Therefore, it is important to have a divorce lawyer who can explain your side of things. They may be able to demonstrate that the relationship was like a marriage long before laws were changed, so the duration of the relationship might affect alimony. There are also many other factors that affect alimony, including:

• Both spouses’ age and health
• Standard of living during the marriage
• Each partner’s earning capacity and educational level
• Parental responsibilities
• Whether either spouse sacrificed earning potential for the other
• Each person’s personal and financial contributions to the marriage

To add another layer of complexity to alimony, you also need to factor in prenups and civil unions. For couples who were in a civil union before their marriage, it is possible you may need to both dissolve the civil union and the marriage. While ending either of these legal agreements, prenuptial agreements may need to be taken into account. Though a judge can throw out a vastly unfair prenup, you might end up needing to follow the terms set out in one or more prenuptial agreements.

There May Be More Disagreement During Property Division

Another factor in calculating spousal support is property division. During divorce, property is categorized into marital property and individual property. Any property acquired during the marriage is typically marital property that should be split evenly following the divorce. To decide on alimony, the judge may consider how much individual property each spouse has. When it comes to marriages that started before same-sex marriage was legalized, figuring out what counts as personal property can be hard. Similarly to heterosexual couples, same-sex property division can include

• Cars
• Homes
• Retirement funds
• Investments
• Furnishings

The basic guidelines for property division become complex if you and your partner had joint finances for years before same-sex marriage was legalized. There is always a chance that something you considered joint property will go strictly to your ex or that something you thought was yours might end up being divided in court. Just like figuring out basic alimony payments, property division is often left up to the judge’s discretion. Instead of automatically accepting that everything before 2015 was individual property, you and your divorce lawyer may need to provide in-depth documentation of your finances.

When deciding property division, the judge will look at:

• When you got the property
• Who paid for the property
• Who maintained the property
• Who uses the property

If you want a property, it can be necessary to argue that your funds or effort contributed to getting the property. For example, consider a home purchased before same-sex marriage was legalized. If only one person has been paying for the property, it might be seen as individual property. However, if the other person was also helping with the mortgage or paying for major repairs, the property might be considered joint property.

Child Support Comes With Unique Issues

Any spousal support arrangement also has to consider whether either spouse is going to need funds to care for the couple’s child. Child custody is complex because both partners do not always automatically have parental rights for their children. Especially if the child was conceived before the parents were married, child custody and support gets tricky. In LGTBQ families, there can be all sorts of familial arrangements, such as:

• One spouse adopting the other’s biological children from a previous marriage
• A non-biological child who has been adopted by both parents
• One spouse that has no legal rights but helps to raise the other’s biological child
• A woman giving birth to a child with her wife’s genetic material
• Fraternal twins with separate biological fathers

When both parents have legal rights for the child, child support and custody are straightforward. However, when there is any question about one parent having legal rights, the entire situation is open to interpretation. Even if a parent is non-biological and has never adopted the child, they may be able to claim they are a psychological parent to the child. This can allow them to get partial custody because the child sees them as a parental figure.

Whether or not a parent has custody of a child will affect the type of support they may receive. When a parent has full custody of the child, the other will need to pay them child support and potentially a little extra spousal support. In situations where both parents have joint custody of the child, it is necessary for the child to be fully supported when they are with either parent. This means that a parent whose standard of living is drastically affected by the divorce might need additional alimony.

Experienced Legal Representation Can Help

Ultimately, most same-sex divorces are decided on a case-by-case basis. There are simply too many unusual factors and too little legal precedent involved, so standard divorce guidelines might not be relevant. In a few decades, when most new couples have the option of getting legally married at any time, things might be different. But right now, so many couples were together before legalized marriage that it can take effort to figure out spousal support.

To get the best outcome for your case, you need to be able to clearly and effectively present all the facts of your relationship to a judge. You need a lawyer who can argue in your favor and collect proof of why you deserve a certain amount of spousal support.

If you are looking for a divorce lawyer with experience handling LGBTQ divorce and spousal arrangements, look no further! The Law Office of Kelly Berton and Rocco has spent over 30 years assisting the residents of Hackensack with divorce. We are there for you during a sensitive time, so you get support while handling subjects like alimony and custody. Give us a call at (201) 343-0078, or fill out our online contact form to schedule your consultation.