Same sex marriage has been on the forefront of the news this year with the Supreme Court’s landmark decision in Obergefell v. Hodges. However, same sex marriage has been legally recognized in New Jersey since October 2013 following the Superior Court’s ruling in Garden State Equality v. Dow, which means that New Jersey is starting to observe the issues associated with same sex divorce.
Spousal Support in New Jersey Same Sex Divorce Cases
One of the key issues that is arising in same-sex divorce cases is spousal support. Because same sex marriage has only been legal for two years, case law addressing spousal support and equitable distribution of assets is not developed.
While New Jersey spousal support statutes prescribe a number of factors in determining spousal support awards, one of the key factors is the length of the marriage. Because same sex marriage has only been legal for two years, this puts same-sex spouses at a disadvantage, especially if they have been cohabitating and otherwise acting as if they were married for many years before. A dependent spouse could argue that the length of marriage provision should not be taken literally and that he or she should be awarded a greater amount because the court should consider the fact that they were not allowed to get married prior to 2013.
The cohabitation argument has been addressed in the context of heterosexual couples in McGee v. McGee, where the New Jersey Appellate Division held that “extent of actual economic dependency, not one’s status as a spouse, must determine the duration of support.” Because of this, courts must consider the time that same sex couples spent in a committed relationship prior to the actual date of marriage. This is also important in determining whether permanent or limited duration alimony is to be awarded.
Equitable Distribution of Assets in New Jersey Same Sex Divorce Cases
New Jersey is an equitable distribution state, which means that upon divorce, marital assets are divided in a way that is “fair” to both spouses. In New Jersey, equitable distribution involves three steps:
- Determining what property will be part of the equitable distribution (marital property vs. non-marital property)
- Determining the value of the marital property
- Distributing the property
Again, the issue arises with regard to same sex couples that may have been in a committed relationship for 15 years, but only married for two years. Shouldn’t the court consider the distribution of property acquired during a significant portion of their relationship? According to New Jersey Statute section 2A:34-23(h), the answer is “no.”
Another issue that may arise is whether the couple took advantage of the opportunity for a civil union, which has been available to same sex couples since 2007. Only time will tell how the courts will deal with this question.
If you are in a same sex marriage, whether you are considering divorce or not, it may be a good idea to talk to an experienced New Jersey LGBT family law attorney. They can help you sort out property interests and other issues prior to divorce, so that you can focus on your relationship. Contact us today either online or by phone at 732-603-8585 for an expert consultation.