Unique Legal Issues Faced by LGBTQIA+ Couples During Divorce

Note: Our Podcast, “A Year and a Day: Divorce Without Destruction”, was created to be heard, but we provide text transcripts to make this information accessible to everyone. All transcripts on our website are created using a combination of speech recognition software and human transcribers and could contain errors.

Jaime: Welcome to A Year and a Day. I’m Jaime Davis, Board Certified Family Law Attorney at Gailor Hunt. On this show, I talk with lawyers, psychologists, and other experts with the goal of helping you navigate divorce without destruction. In this episode, I’m speaking with my law partner, Jonathan Melton. Jonathan is a Board Certified Specialist in Family Law and a certified mediator for family financial cases. Jonathan is also a member of the Raleigh City Council and serves as the chair of the City Council’s Economic Development and Innovation Committee. Jonathan and I will be discussing same sex marriage and issues LGBTQ couples may face when going through a separation and divorce. Thanks for joining me, Jonathan.

Jonathan: Thanks for having me.

Jaime: So for a long time, same sex marriage was not legal in North Carolina. When and how did that change?

Jonathan: Right? Yeah, it was not legal. And unfortunately, voters in, I think, 2012 actually voted to approve a constitutional amendment that banned same sex marriage in North Carolina, and so that was on the books and prohibited same sex marriage up until marriage equality became the law of the land. So in 2015, there was a Supreme Court case, Obergefell versus Hodges, and that recognized same sex marriage nationwide.

Jaime: So prior to Obergefell, what issues did same sex couples face if they wanted to be in a committed relationship but could not legally marry?

Jonathan: Well, all of it was really complicated because you get certain rights when you’re married, and if you separate, you have certain legal remedies that you just don’t have if you’re unmarried in a dating relationship. So if you get married, then all the property you acquire during the marriage is considered marital property and subject to equal division. You have the ability to ask the court for equitable distribution. You have the ability to ask the court for support. Do you have certain tax benefits? And none of that was available to same sex couples in North Carolina.

Jaime: Yeah, just thinking through it, I mean, something as simple as buying a house together would require its own separate contract if you wanted it to be clear as to how that would be divided in the event that you were no longer in a relationship.

Jonathan: Right. And our law provides certain mechanisms that can sort of mirror some of the protections you could have if you’re married. For example, with purchasing property, there is a way you could buy property with someone where, if you were to pass away, then your interest in the property automatically goes to the other person, which is, I guess, a little similar to how it works when you buy property as a married couple, but it’s really not the same. And I’m sure there are other creative ways folks could get around certain issues through private contracts or through estate planning, but it really just made it more burdensome, more complicated for same sex couples to try to get some of the same legal protections as opposite sex married couples.

Jaime: Right. And it seems like so much more planning would have to go into things on the front end versus you get married and then you have equitable distribution, alimony, all these other laws that help you in the event that you separate.

Jonathan: Right. Yeah, and I think ultimately that sort of equal access to the laws. Equal access to the protection of the laws is why the United States Supreme Court ruled in favor of marriage equality.

Jaime: So, pre marriage equality, how would a same sex couple deal with custody issues, for example?

Jonathan: Yeah, so custody issues remain tricky, but the issue with same sex couples and producing children is that you don’t have all of the necessary, I guess, biological material to produce a child with same sex couples. So that makes the custody issues difficult. In North Carolina, you have to be the parent to have custodial rights. And so with same sex couples, often there’s only one biological parent. Only one parent has contributed some material towards construction of the child. And so one of the ways that marriage equality has helped with custody issues is that in North Carolina, if you are legally married, then you can adopt that child. And so North Carolina doesn’t make any distinction between biological parents and adoptive parents for custody purposes. So now that same sex couples can get married, the partner who is not contributed biologically to the child can adopt the child. And that really eliminates a lot of custodial issues. If for some reason one of the parties in a same sex couple doesn’t seek adoption of the child and there is a separation and a custody dispute, it makes it a lot more difficult because the biological parent has the constitutionally protected right to exclusive care and custody of that child. And the only way you can really assert custodial rights if you’re not the biological parent or an adoptive parent is you have to prove that the biological parent has acted in some way inconsistent with their constitutional right to exclusive care and custody. And in that arena of same sex couples, what you’re looking for is did the biological parent intentionally sort of create a parent childlike relationship with the non-biological parent, but it makes it a lot more complicated?

Jaime: Absolutely. I mean, it is certainly a very hard standard to prove that a parent has acted inconsistent with their protected status. And I would say it’s very much a gray area, very case specific. It’s going to depend greatly upon the facts of your particular case. And doing an adoption seems to be a much cleaner, easier way to do that.

Jonathan: Yes. So now that marriage equality is the law of the land, as long as you’re married, you can go through with the adoption in North Carolina. And I think that’s your best option. If you don’t do that, you have to show that the biological parent acted inconsistent, basically created a parent-childlike relationship. And so what you’ll look at is things that they did prior to the birth of the child and then things that they did after the birth of the child.

Jaime: Can you give me an example of something that you might consider?

Jonathan: Sure. I mean, after the birth, as a child, you’re looking at did the biological parent hold the non biological parent out in public as a parent of this child? Did the non-biological parent contribute substantially to sort of the nurturing and upbringing of the child? And then prior to the birth of the child, you look at sort of all of the birth planning. Were they involved in the putting together the nursery? Did they go to the doctor’s appointments, those types of things.

Jaime: Also, for a period of time prior to the Obergefell decision, same sex marriage was legal in some states and not in others. And we’ve talked about that. How did that impact a couple if they were legally married in one state, but then they moved to a different state that did not recognize same sex marriage? North Carolina, for example.

Jonathan: Right. So normally for opposite sex couples, there’s legal rule called full faith and credit. So if you’re married in one state, you’re married in all 50 states. If you’re married in one state, the federal government recognizes your marriage before marriage equality. You could go to a state that allowed same sex marriage, and you could be married in that state, but you’re not necessarily married in another state that didn’t allow same sex marriage. Marriage equality required all 50 states to allow marriages of same sex couples. And then the federal government also took it one step further recently by passing a bill just last year, the Respect for Marriage Act, which designated the full faith and full credit to all marriages. So it was really in response to some recent Supreme Court decisions that seemed to have undone some constitutional rights that were afforded by the Supreme Court. And so I think out of an abundance of caution, the Congress and the President said, well, if for some reason Obergefell is ever overturned, let’s at least put something in legislatively that says if you’re married in one state, it’s entitled to full faith and full credit in all states. So now all states have to recognize marriage equality. And any marriage in a state where it’s legal has to be given full faith and full credit. Meaning, if for some reason marriage quality is overturned, but you go to a state that allows same sex marriage in that state, then it’ll have to be recognized in the state you go to as well.

Jaime: Right. I mean, the consequences if that were not the case would be terrible. I mean, being married in one state, let’s say you’ve adopted a child, you have a child together, and then all of a sudden you find yourself in a state that didn’t recognize same sex marriage. It seems like that would just be a very chaotic environment to be in.

Jonathan: Right. Yes, and I mean, that’s the reason why full faith and credit has always been applied to marriages. It was just misapplied or not applied equally to same sex marriages. And so I think it was important that the federal government cleaned up that loophole and hopefully we don’t end up in that situation. But it’s good to have that as a safety net.

Jaime: Definitely. Prior to marriage equality, were there any other ways North Carolina law treated same sex couples differently?

Jonathan: Yes, I think the most obvious example was with our domestic violence statute. The domestic violence statute applies only in certain personal relationships and one of those are spouses or former spouses. So obviously before marriage equality, same sex couples could not be spouses. And then the other way was folks in a dating relationship at the time, it only allowed individuals in heterosexual opposite sex dating relationships and that is still actually how the law is written. But there’s some recent cases that came out of the Court of Appeals which were then affirmed by the North Carolina Supreme Court stating that that provision needs to be applied to same sex and opposite sex couples. So now if you’re in a same sex dating relationship, if there’s a form of domestic violence, you can seek the protections of a domestic violence protective order and before you could not.

Jaime: Right. So Jonathan, if a client were to come to you for counseling prior to getting married, same sex couple, is there any special advice that you would give to that person?

Jonathan: Right. I would give them the same advice I would give to any couple or client that was coming to me. Just a client. We can’t represent both sides right. Seeking advice prior to entering intermarital relationship, and that would be to get a premarital agreement or a prenuptial agreement. All of the issues that we as divorce lawyers deal with on the back end, how to divide assets, what the support issues may be for spousal support, alimony and post separation support, all of that is just so much easier to deal with on the front end. All of the fighting, all of the time spent in court or mediation or negotiating on those issues could be drastically shortened, if not entirely avoided. If you get a premarital agreement in place before you get married. Now, if you’re going to have kids, the premarital agreement cannot address what happens with the custodial schedule and it can’t really address child support, but it can certainly address any spousal support issues. It can address how your property is going to be divided, how marital property will be treated, how separate property will be treated, and it just saves so much time and money later.

Jaime: Right. Yeah, absolutely. I mean, a premarital agreement is a great way to go ahead and lay out the ground rules so that in the event you separate, of course you don’t go into marriage thinking that your marriage is ever going to end. But if you do separate, you already have this legally binding contract that’s going to tell you what you’re going to receive, what your spouse is going to receive, whether there’s going to be alimony, a lot of premarital agreements. There’s an alimony waiver or some sort of formula or other mechanism that will set forth how alimony will be determined. And that can save you a lot of money and a lot of headache in the event that you do get separated. But you’re right, you may still have to deal with your custody issues because unfortunately, those cannot be addressed in the premarital agreement, but it can certainly clean up some of those other issues.

Jonathan: Right. And I think for a long time there’s been this stigma around premarital agreements or prenuptial agreements. I personally have one with my husband, but it’s kind of like insurance. You pay every month for your health insurance. You’ve got car insurance. If you own a house, you have homeowners insurance. Most people have renters insurance. I hope you never have to use it, but you have it there as a safety net. And I think that the premarital agreement is your safety net.

Jaime: Well, I think, too, a lot of people don’t realize that there are certain inheritance rights that you acquire just by virtue of the fact that you get married, and that if you have a will that leaves property to people other than your spouse, your spouse can still ask for an elective share of your estate. Of course, depending on how many years you were married is going to determine the percentage. But with the premarital agreement, you can go ahead and waive those inheritance rights so that you are free to leave whatever you want to whoever you want by will. And if that person happens to be your spouse, that’s okay. They can certainly take a share that you have left to them in your will. But it also frees you up to leave property to, let’s say, you have children from a prior relationship, or maybe you have a sibling that you want to leave your property to. You have more options if you have a premarital agreement.

Jonathan: And I agree. And I also think for folks in same sex relationships, there are a lot of individuals or couples who are same sex couples that have been in relationships for a really, really long time. And because they could not get legally married until marriage equality was passed in 2015, their financial situation may be even more complicated. And I think that there may be a sort of desire to get married quickly, because now you can. And there’s not this maybe pause that opposite sex couples do to think about how do we want to plan for our financial future? And so I think it’s even more important for same sex couples, especially if you’ve been together a really long time. Maybe you’ve already acquired some property together, maybe you already have joint accounts you can put in the premail agreement what’s going to happen to all of those assets? You can convert some of those assets to marital assets in your agreement if that’s what you choose to do. And so I think for same sex couples, marriage planning, especially if you’ve been together a really long time, is even more important.

Jaime: That’s a great point. I mean, normally, let’s say a couple has been together 15 years, but they’ve not married. That property that they’ve probably acquired together, our law would call separate property until they get married, and then anything they acquire after that data marriage would be marital. And so maybe for a particular couple, they believe they’ve acquired it together, they want to share in it together. And you’re right, that premarital agreement can classify that property as marital, and they, you know, could each receive half of it.

Jonathan: So I think that’s a really important consideration on both sides if you’re eager to get married, because now you can pause think about what would happen if you separate and try to head off those issues. And if you’ve been together a really long time and now you’re choosing to get married because you can, figuring out what to do with the assets you’ve already acquired is important too.

Jaime: Well, and I think on the opposite end of the spectrum, maybe you don’t have good insight into your prospective spouse’s finances. Maybe you guys have kept those things completely separate, which is okay. But with a premarital agreement, you’re required to make a full disclosure of your assets and debts. And so it could be a good way, too, to make sure that you have a complete picture. You don’t want to go into a marriage and your fiance has $100,000 in debt that you weren’t even aware of. Maybe they’ve got $200,000 in student loans or something. And just having an understanding of what’s out there, I think is a good way to start a marriage.

Jonathan: Yeah, I agree.

Jaime: So we’ve talked about premarital agreements and how those apply to same sex couples. What about separation and divorce? Jonathan, is anything about that process going to be different for the same sex couple?

Jonathan: No. Now that marriage equality is the law of the land, you avail yourself of the same rights and obligations and protections under the law as opposite sex couples. I think the issue is that I have had clients come to me, prospective clients come to me who have been together in a same sex relationship for a very long time, were never married, and now they’ve separated. And so that, I think, becomes the issue. If you were never married, if you acquired all these assets, if you lived together as though you were married and now you’re separating, how do we divide things? And quite frankly, it typically comes down to whose name is it in? Which is unfortunate, because sometimes maybe assets are put in one person’s name and not the other person’s name. And then the real complicated issue is if you own real estate together, because if you’re married and you own real estate together, that’s part of equitable distribution. And the presumption is that you’re each entitled to 50% of the value of the marital estate. Doesn’t matter whose name it’s in. If you own real estate together and you’re not married and then you’re separating, you have to figure out what’s going to happen to that real estate. And if you can’t agree, then the only real court proceeding you could have is what’s called an action for partition, which is where you’re basically asking the court to award, I guess, half of the house to someone and assign a value to it or order it to be sold and the proceeds divided 50 50. But you really lose a lot of control in that process.

Jaime: Right. Especially if one person really wants to keep the house. If we’re dealing with equitable distribution, the division of property between separated spouses, the court is going to award that house to one party or the other. They’re not going to order it sold. And so there’s certainly more, I would say, control and ability if you want to keep the house, to do that through equitable distribution than through a partition proceeding.

Jonathan: Yes. And then there’s the whole issue of you can’t force the other person out of the house with a partition proceeding either. And so instead of possession being awarded, which is something that the court can do in equitable distribution, if you own a house together, you’re not married, and the partition court is just going to order it be sold. And so then no one gets to keep the house and you’re both moving out. It just makes the entire process more complicated.

Jaime: Can you think of any times that you’ve represented someone pre marriage equality and how that turned out versus how their situation could have turned out today had it been post marriage equality?

Jonathan: Yes. I mean, prior to marriage equality, I would have potential clients come to me who were living together with their partner as though they were married for a very long time. And unfortunately, a lot of what I would see are assets that are titled in just one person’s name, in which case the other person, even if they have contributed substantially to building up that wealth, building up those assets, they’re not legally entitled to anything. I think our equitable distribution law, the way it’s written, some individuals don’t feel like it’s fair because it says that everything acquired during the marriage, it doesn’t matter whose name it’s in, if it was acquired by the efforts of the marriage, it’s marital property and subject to division 50 50. And our equitable distribution statute acknowledges that sometimes there are different ways to contribute to a marriage. Sometimes you’re the person outside of the household doing the work, earning the income in that way, and sometimes you’re the spouse inside the household doing the work to keep the household running, maybe taking care of pets, maybe taking care of children, and you’re contributing to the marriage as well. And so just because you’re not earning the income or the income is not in your name doesn’t mean that you’re not contributing. And our equitable distribution statute acknowledges that there are different ways to contribute to a relationship, and you get to share in the financial wealth 50 50. But if you’re not married, you can’t access the equitable distribution laws. And so then anything that’s acquired in your relationship, even if you’re living together, even if you’re acting like spouses, if it’s in one person’s name, it’s their asset, right?

Jaime: I mean, without equitable distribution, you’re in this realm of title controls. So if the car is in your name, it’s yours. If the house is in your name, it’s yours. Whereas you’re right. Equitable distribution takes into account that typically spouses have different roles in a marriage. And if you don’t think that’s fair, then you need to be careful during your marriage what roles you establish for each other. Right? Like if you’re somebody who doesn’t think your spouse should share in the wealth, so to speak, because you’ve been the breadwinner, but yet they’ve been home taking care of the home and the children and really supporting your career. Potential, then maybe the two of you need to have a discussion early on in the marriage that, hey, we both need to be working here, and we both need to be contributing, because otherwise you’re going to be stuck with those roles when you separate.

Jonathan: Yes, and not just the money that’s acquired the assets that are acquired. The earning potential of both spouses as well. One unfortunate circumstance I saw recently was a same sex couple. They were together like 15, 16 years. They were only married for a year or two, then separated, started the divorce proceedings. One of them earned all of the income for the almost 20 years they were together. And the other spouse was more of worked in the nonprofit world, more stay at home. And if you are married and separate, you could assert a spousal support claim against the other party. There are two types of spousal support. There’s alimony, which is more like long term rehabilitative support. Then there’s post separation support, which is like short term help you kind of get on your feet. There’s no magic rule for alimony in North Carolina. Typically what we see is it’s awarded for 50%, the length of the marriage. You have to determine what the standard of living was during the marriage. But all of that applies to the marriage, right? So if you were together for 15 years but only married for two, you’re not looking at a very long period of alimony. And in fact, it may be difficult for a judge to even determine what the standard of living was during the marriage because they can only look at that period of time during the marriage leading up to the separation. So if you had been married for the full 17 years, you probably have a strong argument for eight, nine years of alimony. But if you’re together for 15 and married for two, you’ve got maybe an argument, I would say for twelve months of alimony. And that’s an unfortunate reality too, because a lot of these same sex relationships existed for a really, really long time. Maybe the marriage itself was not that long, but the relationship was because you couldn’t get married until 2015. And so that is something I’ve encountered as well.

Jaime: Yeah, I could see where that would result in some really unfair feeling outcomes for folks. For sure.

Jonathan: Yes. Which is also something that you could address in a premarital agreement.

Jaime: If you could only give one piece of advice to someone going through a divorce, what would that be?

Jonathan: The premarital agreement?

Jaime: Absolutely.

Jonathan: I think for same sex couples, the two most important things to consider are a premarital agreement for how your assets and income will be handled if you separate and if you’re going to have children, the non biological parent should consider adopting that child. Because again, the law does not treat a biological parent and an adoptive parent differently. There’s no presumption, there’s no preference for the biological parent over the adoptive parent. So if one of the partners in the same sex marriage is the biological parent and one is the adoptive parent, then they both have equal custodial rights. If they separate and divorce, if only one is a biological parent and then the other one is not biological or adoptive, then they have a much, much harder time proving, standing for a custody lawsuit, quite frankly, proving the ability to get some custodial rights to that child. And so I would say the two biggest pieces of advice are get a premarital agreement to deal with your financial issues. And once you’re married, if you have children, that the non biological parent should adopt that child.

Jaime: Well, and just thinking through your prior point about the inequities that can result if a same sex couple has been in a dating relationship for years and years and then they get married, the premarital agreement is a great way to remedy those inequities and try to put the folks on more equal footing in the event that they separate.

Jonathan: Yes. I mean, you can pull all of that property into the marriage that had been acquired premarriage. And on the support issue, you could contract for a duration of alimony. And so if you are the partner in the example of the long term dating relationship, if you’re the stay at home partner, you could put in a premarital agreement that you’re entitled to alimony for 9, 10 years. That you’re entitled to a lump sum that you’re entitled to a certain duration of alimony based on your years together, not just necessarily the duration of the marriage. I mean, you can pretty much contract for what you want, as long as it’s not a violation of public policy in a premarital agreement.

Jaime: If someone listening is interested in reaching out to you for help with their divorce, what is the best way for them to connect with you?

Jonathan: You can go to our website, divorceistough.com, and my bio is on there, and my email address is jmelton@divorceistough.om. It’s also Google. Google’s a great search engine.

Jaime: Google’s great. Thanks, Jonathan, for joining us.

Jonathan: Thank you.

Jaime: Thank you all for listening. If you like this episode, be sure to follow the show wherever you get your podcast so you don’t miss the next one. While this information is intended to provide you with general information to navigate divorce without destruction, this podcast is not legal advice. The information is specific to the Law in North Carolina. If you have any questions before taking action, consult an attorney who is licensed in your State. If you are in need of assistance in North Carolina, contact us at Gailor Hunt by visiting divorceistough.com. I’m Jaime Davis, and I’ll talk with you next time on A Year and a Day.