But What About Same Sex Divorce?

Gay marriage: a controversial, emotional, and politically-charged topic that has raged across America throughout 2013.  From staunch social conservatives on one end of the spectrum to gay couples and human rights activists on the other, everyone seems to have a strong opinion about the matter.  But in the raging storm of media chaos about the legal merits of gay marriage, something else, something closely related, has silently fallen by the wayside: gay divorce law.  As states across the country battle to permit or suppress same sex marriages and the year draws to a close, the inevitable question is finally beginning to break the surface of the churning political waters: what happens when a same sex marriage hits the rocks?


Divorce in the United States

Divorce is prevalent in the United States — so prevalent, in fact, that it’s become a popular (if somewhat exaggerated) adage that “half of all marriages end in divorce.”  While heterosexual divorce rates may not be quite that high — a more accurate number is estimated to be in the range of 30 to 40% — divorce is nonetheless an aspect of marriage that, realistically and statistically, is difficult to ignore.

Yet, that’s essentially what has been happening throughout much of the ongoing same sex marriage debate.  Opponents, proponents, politicians, and legislators alike have been so focused on achieving or denying the right to marry that the logistics of same sex divorce have hardly been touched by comparison.  But in a case of taking the bitter with the sweet, after the initial warm glow of achieving equality has cooled, it inevitably becomes apparent that not all same sex marriages — just like opposite sex marriages — were meant to be.

So what happens when that’s the case?


Geography and Same Sex Divorce

Like so many areas of law, geography plays a critical role in determining the course of a same sex divorce.  To date, 17 states in the nation — including New Jersey — have recognized gay marriage. Even in those 17 states, the laws pertaining to same sex divorce vary.  Outside the jurisdictions which recognize gay marriage, the issue becomes even more tangled, because if a marriage hasn’t been legally recognized in the first place, there’s no preexisting grounds from which a couple can formally proceed toward a divorce.

A common law in many states is that, as with straight marriage, the parties of a gay marriage must be residents in that state for a given period of time.  For example, gay couples who wish to divorce in Iowa must live in the state for a minimum of one year prior to filing for divorce.  In New Hampshire, one half of the couple must have been a resident for at least one year, with the added stipulation that both parties must currently reside in the state.

In New Jersey, the nature of the divorce depends on the classification of the relationship — because while the state began recognizing gay marriage in 2013, gay couples may have been united in a domestic partnership (beginning in 2004) or in a civil union (beginning in 2007).  Same sex couples who were in a gay marriage would follow the same divorce procedures as a straight couple, but that doesn’t quite apply to partnerships and unions.  Couples wishing to dissolve a partnership or union, by comparison, must also submit both a case information statement, as well as file a complaint for dissolution.  In the case of domestic partnerships, because they do not create the same property rights or joint debts as a marriage or civil union, issues of alimony do not generally come into play.

The laws surrounding gay marriage (and gay divorce) are changing all the time.  If you would like to speak with an attorney about divorce law in New Jersey, contact the law offices of Maselli Warren online, or call us today at (800) 891-2657.