Same sex couple considering a divorce
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Same-sex divorces in New Jersey are generally subject to the same laws and procedures as different-sex divorces. However, there can be some unique considerations that might come into play:

  • Marriage Duration: Same-sex marriage was legalized in New Jersey in 2013, which means that even though some couples might have been together for a long time, they may have been legally married for a shorter period. This can affect issues like spousal support and division of property.
  • Civil Unions: New Jersey recognized civil unions before same-sex marriage was legalized. The conversion of a civil union to a marriage could impact the calculation of marital assets and the duration of the marriage for alimony purposes.
  • Children: Custody and visitation can be more complicated, especially if one of the spouses is not the biological parent and has not legally adopted the child. This can also impact the calculations for child support agreements.
  • Prenuptial Agreements: Because same-sex marriage was not legally recognized for so long, couples may have entered into domestic partnership agreements or other forms of contractual arrangements that could affect the division of assets upon divorce.
  • Federal Benefits: Federal laws, like those regarding military benefits and taxes, may affect same-sex couples differently, particularly for those who were married before the nationwide legalization of same-sex marriage in 2015.
  • Interstate Complications: If a couple has lived in states where same-sex marriage was not recognized, this could affect the enforceability of prenuptial agreements and the division of property and assets.
  • Social Stigma: While the law may not discriminate based on sexual orientation, prejudicial opinions could affect negotiations or court proceedings.
  • Spousal Support: Same-sex couples may face unique circumstances that the court may or may not fully understand or consider when determining alimony, such as potential career sacrifices made because of discrimination in our society.
  • Retirement Plans: Division of retirement assets that accrued before the marriage might involve special considerations in order to be recognized.
  • Debt Responsibility: Just like any divorce, debts acquired before and during the marriage will be scrutinized, but the shorter legal duration of some same-sex marriages may complicate this.
  • Estate Planning: Given that same-sex couples may have historically been unable to participate in certain benefits, existing wills, trusts, or estate plans may need special consideration during divorce.

Same Steps For Same-Sex Marriages As Different- Sex Marriage

Preparation

1) Legal Consultation: Speak to a family law attorney to understand your rights and obligations. This is crucial for complicated cases that involve child custody, alimony, or significant assets.

2) Residency Requirements: At least one of the spouses must have been a resident of New Jersey for at least 12 consecutive months before filing for divorce. The only exception to the one-year residency requirement in New Jersey is when the grounds for divorce are for adultery.

3) Grounds for Divorce: Decide the grounds upon which you plan to file for divorce. New Jersey allows both no-fault and fault-based divorce.

Filing for Divorce

  • 1) File a Complaint: The first official step in the divorce process is filing a “Complaint for Divorce” at the county court where either spouse resides.
  • 2) Serve Papers: After filing, the other spouse needs to be served with divorce papers, and they will have a set period to respond.
  • 3) Case Management: After filing, both spouses attend a Case Management Conference, where preliminary matters like financial disclosures and a timetable are set.

Temporary Orders

While the divorce process is underway, temporary court orders for child support, spousal support, and other financial matters may be necessary.

Discovery and Settlement

  • 1)Asset and Debt Division: The assets and debts have to be disclosed and valued before they can be divided.
  • 2) Negotiation: The spouses, either on their own or with their attorneys, negotiate the terms of the divorce.
  • 3) Mediation: A neutral third-party mediator can assist in finding common ground if negotiation is not possible.

Trial

If a settlement cannot be reached, the divorce will go to trial. After the trial, the court will issue a Final Judgment of Divorce, which covers determinations regarding alimony, child custody, and asset division. The divorce is now said to be finalized.

Takeaway

It is important to consult with an experienced New Jersey family law attorney, preferably one who is familiar with same-sex divorces as well. This will ensure that you are making the best decisions for your unique situation. If you or someone you know is faced with such a situation, contact Bozanian McGregor to help navigate you through your divorce. You can trust that we will provide you with outstanding legal, as well as emotional support, while you sort through these legal obstacles.  

About the Author
Elton’s passion has always been family, guardianship, and estate practice, and the complexities that accompany each unique, family-oriented matter.