Everything You Need to Know About Same-Sex Divorce in NJ

Getting a divorce is a complex and often overwhelming prospect. On top of the emotional upheaval, divorcing couples also have to navigate an unfamiliar legal landscape that involves negotiating terms, dealing with filing deadlines, and trying to plan for the future. 

There are a lot of considerations at stake, and for same-sex couples, there may be additional nuances to factor in. 

If you’re facing the prospect of a divorce, one of the best things you can do—outside of working with an expert divorce attorney—is to be as well-informed as possible. This primer on same-sex divorce in New Jersey covers the history of same-sex marriage in New Jersey, what makes these divorce unique, and areas of divorce that may require a more nuanced approach. 

The history of domestic partnerships and civil unions in New Jersey

Because New Jersey didn’t begin to recognize same-sex marriages until 2013, many same-sex couples in the state chose to enter into domestic partnerships or civil unions. 

Domestic partnerships have been recognized in New Jersey since 2004. This legal relationship afforded rights relating to inheritance, healthcare, joint tax filing, state pensions, and insurance. However, domestic partnerships did not—nor do they today—provide the same scope of rights as a marriage. 

Then, in 2007, same-sex couples in New Jersey gained the right to enter into civil unions, which provided them with the same rights and protections as those of married couples in the state. However, it’s important to note that civil unions don’t afford the same federal rights and benefits as marriage.

Thanks to the legalization of same-sex marriage, though, couples in New Jersey now have the same right to marry and divorce as straight couples. This became law in 2013.

Unique aspects of dissolving a same-sex marriage

While the procedural elements of same-sex divorce are the same as those of straight couples, gay and lesbian couples often have specific concerns. 

In particular, LGBTQIA+ couples’ concerns can stem from past civil unions or domestic partnerships, which can potentially impact the equitable distribution of assets. Additionally, child custody concerns may necessitate thorough conversations, depending on how parentage has been established.

What separating or divorcing same-sex couples should know about

Procedurally, divorce generally works the same for same-sex couples as it does for straight couples. However, there are some nuances within specific legal issues that LGBTQ+ individuals should be aware of. 

Property rights and division of assets

New Jersey divorce law states that a divorce can’t be finalized until the couple splits all their marital assets between them. 

New Jersey requires that assets be divided according to the principle of equitable distribution. Equitable distribution is focused on fairly allocating marital property (i.e., property acquired during the marriage) to each of the spouses, accounting for factors like each spouse’s current financial situation and their contributions to the shared property.

The requirement to equitably distribute marital assets (whether by mutual agreement or by court ruling) before finalizing a divorce also applies to LGBTQIA+ couples. 

However, if you were in a committed relationship and living together before same-sex marriage was legalized, you would have been considered legally single if you weren’t in a civil union or domestic partnership at that time.

As a result, any property acquired before your marriage would not be classified as marital property. 

In light of this, a judge may decide to classify property like this as marital property according to their discretion through the doctrine of transmutation. For instance, if you and your spouse have been living in the same home for many years, but one of you purchased the home before you got married, a judge may nevertheless reclassify your home as marital property to achieve equitable distribution of your shared assets.

Custody of children 

Because same-sex marriage has only been legal for about a decade, there are relatively few examples to set a precedent for these situations. Legally, LGBTQIA+ parents have the same parental rights as straight biological parents. 

However, if one of the divorcing spouses isn’t biologically related to their child (and the other spouse is), they might be concerned that this will disadvantage them in child custody decisions unless legal measures were previously taken to establish parentage. For example, if a gay couple had a child via surrogacy but did not obtain a parentage order or stepparent adoption for the non-genetic parent, there may be extra steps necessary to ensure custody rights. 

This is where the support and advocacy of a compassionate family lawyer can be incredibly helpful as the non-biological parent demonstrates their involvement in raising their child.

Alimony 

A married LGBTQIA+ couple is subject to the same laws around alimony and spousal support as a married straight couple. This means that a court making a judgment about alimony will account for a range of factors, including:

• The two parties’ need and ability to pay alimony
• How long the marriage has lasted
• The age and health status of both spouses
• Both spouses’ overall employability and earning capacity
• Parental responsibilities, if there are any children
• And more

The complicating factor in this equation is the length of marriage; because same-sex couples were not legally allowed to marry before 2013, the length of marriages may be comparatively shorter even if relationships began well before then. 

If you’re concerned about alimony, an experienced divorce attorney can help you craft a strategic approach to this aspect of your divorce.

Consult with an Attorney

Although pursuing a divorce in New Jersey can be an overwhelming experience, working with an experienced family law attorney can reduce the stress and uncertainty of the process. 

Our team of divorce attorneys at Dughi, Hewit & Domalewski has a deep knowledge of the New Jersey legal system. We also have the compassion and experience needed to help you and your spouse agree on the most amicable possible resolution (without sacrificing your own interests). 

Schedule a consultation to learn more.