Divorce is never a pleasant process and rarely is it easy. Significant issues must be dealt with, including property division, child support and alimony. And while same-sex couples are now treated equally in the eyes of New Jersey law, the fact that the equality came about fairly recently can create differences in how their divorce unfolds.
In any divorce, whether it be a same-sex or heterosexual marriage, property and assets must be divided before the divorce is finalized. Ideally, the couple will agree between themselves how those assets will be divided, simplifying the process and avoiding conflict. However, if the couple cannot agree, the court will decide how everything is split up between them, using a process called equitable distribution.
Equitable distribution does not mean that assets will be split 50/50. Rather, the court will look at many different factors to determine who receives what – as equitably as possible. Among the factors are the length of the marriage and what assets were solely owned by one spouse prior to the marriage.
Since same-sex couples were not legally allowed to marry prior to 2013, they may face unique challenges under equitable distribution. For instance, a couple might have been living as any other married couple before they could marry in fact, but the law did not treat them as married. As such, the legal duration of the marriage may be significantly shorter than the length of the relationship.
Additionally, property or assets could have remained in one spouse’s name prior to the marriage even though it was used jointly throughout the relationship. This can create uncertainty – is the property wholly owned by one spouse or is it a marital asset? If you are contemplating a divorce and are concerned that these issues may affect you, seek the assistance of a knowledgeable professional to help you navigate this unsettled area of the law.