Without question, LGBTQ couples have fought long and hard to attain rights that many have long taken for granted. LGBTQ couples in North Carolina officially won the right to marry under the case of General Synod of United Church of Christ v. Cooper, which was followed approximately a year later by the landmark United States Supreme Court case of Obergefell v. Hodges. These cases, and others like them across the country solidified the right of LGBTQ couples to marry in all fifty states. This was, and is, wonderful news for couples across the country who have long wanted to make their long-standing .
While the marriage equality movement has certainly made monumental strides for gay marriage as a whole, the reality of the matter is that many same-sex couples, once married, face many of the same challenges as straight couples do. This includes, of course, the right to divorce, which LGBTQ couples attained along with the right to marry.
Sometimes, despite the best of intentions and dreams for the future, marriages end in divorce. This is true of both gay, and straight couples. Anyone who has undergone a divorce would likely say that it is a challenging time, filled with uncertainty and many emotional ups and downs. For LGBTQ couples, however, there can often be an additional challenges with respect to issues regarding property distribution, spousal support, and child support and custody that straight couples may not experience. At the Law Office of Dustin McCrary, we believe that information is power, and that when you know more, you can feel more assured in taking whatever steps are best for your relationship. If divorce is the best step for you, you should feel confident in making that choice with the knowledge you need to navigate these potentially difficult issues.
Property distribution is one of the most commonly faced (and frequently frustrating) issues during a divorce. North Carolina is an equitable distribution state, in which attempts are made to divide the property equitably – or fairly – between the parties. Typically, courts will assume that dividing the marital property equally is the most equitable resolution. Prior to doing so, the court typically characterizing property as
- Marital: This is all property acquired or earned during the marriage up to the date of legal separation.
- Divisible: This term is often used to refer to the change in the value of marital property that happens between the date of separation and distribution. It may, for example, include any money or property that one or both spouses earned during their marriage, but did not realize until after separation – like a bonus or commission.
- Separate: This includes property that you acquired before the marriage, or property that you gain or lose after the date of legal separation
These distinctions are important, as separate property will not be divided by the courts, and instead remains the property of whoever it belonged to at the time it was acquired. This manner of dividing property has implications for same-sex marriage, insofar as many couples may only legally have been married since gaining the right to do so – but may have lived together as a couple and acquired property together for much longer. Unlike some states, North Carolina does not recognize common law marriage. This means that when dividing property, a court will consider only the legal date of marriage. For LGBTQ couples who have lived together for some time, and acquired a good deal of property together prior to their legal marriage date, consulting with a legal counselor experienced with the law as it applies to property division may be a wise decision.
As is the case with property division, the legal start date of a marriage plays a significant role in determining the amount of alimony to which a party may be entitled following a divorce. Typically, the longer the parties have been married, the more alimony the lower-earning spouse will receive. In same-sex marriage situations, the judge’s determination of spousal support will likely only take into account the years that the parties were legally married, even if they in fact lived together for much longer.
There is perhaps no issue more emotional or contentious during the divorce process than those surrounding child custody. Most of us want to remain as actively involved in our children’s lives as we can – but this can be difficult to do as a divorced parent without any legal standing. According to the law of North Carolina, one is legally considered a parent if you are either the biological parent of the child, listed on the birth certificate, or if you have legally adopted the child.
In the case of an LGBTQ couple, if both are legal parents, they will have equal rights to pursue custody. If, however, only one parent is legally considered a parent despite the marriage of the parties, the other spouse may not have the right to seek physical or legal custody, or even visitation with the child following a divorce. Certainly, the best way to avoid this difficult and very troubling situation in a same-sex marriage is for the non-biological spouse to legally adopt the child while the couple is married. Otherwise, the best route to ensure a continued relationship with the child is for the couple to work out a custody arrangement on their own without the intervention of the court. In addition, there are other arguments that may be made if you have consistently co-parented the child together for a significant amount of time. Consulting with an attorney who understands the complexities of child custody law is always a wise decision when faced with these issues.
Concerns for Non-Binary and Transgender Individuals
The decision to transition and become who you feel that you truly are is a brave one. Unfortunately, in our society today, it is often a decision that is still accompanied by a significant amount of difficulty and unfounded prejudice. Certain states have seen legal decision issued which deny custody or visitation to a transitioning parent on the basis of the assumption that the parent’s gender identity will adversely affect the well-being of the child. While North Carolina has yet to issue a decision specifically addressing this matter, it is an issue that is worth being aware of, and one about which you should not hesitate ot contact an attorney if you feel at all concerned.
Call the Law Office of Dustin McCrary Today
If you are part of an LGBTQ couple facing any of the foregoing issues, or other issues with respect to which you feel legal counsel would be helpful, at the Law Office of Dustin S. McCrary, we’re here to help. We know that the divorce process can be emotional and difficult enough on its own without the added stressors of additionally complex legal issues. We would like to help you with those issues, and to walk with you through this process to ensure that you are able to conclude one chapter and begin another in the healthiest way possible.