For every 1,000 married Baby Boomers — defined as those ages 51 to 69 — 10 divorced in 2015 (pewrsr.ch/2mCxUfa), which increased from 5 in 1990. The increased rate of divorce amongst Baby Boomers has even been given a trendy name: “gray divorce” (bit.ly/2sEDbpj). However, according to the Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy, the divorce rate of same-sex couples is statistically lower than opposite-sex couples. The data shows same-sex couples divorced at an average rate of 1.1 percent annually, compared with 2 percent (bit.ly/1ssHfae) annually between opposite-sex couples. So, what does this mean for “gay and gray divorce?”
When the United States Supreme Court decided Obergefell v. Hodges (bit.ly/1P1iLyH) in 2015, the Court held the Due Process Clause of the Fourteenth Amendment guarantees the right to marry as one of the fundamental liberties it protects, and that analysis applies to same-sex couples in the same manner as it does to opposite-sex couples. Following the decision, same-sex couples now have the choice — to marry or not to marry. For some, first comes love, then comes marriage, and, for 1.1 percent of same-sex couples, then comes divorce.
Generally, when couples marry, they do not contemplate the end of their marriage. However, as the legal landscape evolves for same-sex couples, it is important to consider not only the right to marry, but also the laws that govern the dissolution of marriage. This could be particularly important for Baby Boomers, who are marrying later in life, and have acquired real and personal property, and financial security. Two common claims in a divorce action are: (i) spousal support (i.e., postseparation support or alimony), and (ii) equitable distribution (i.e., property division).
When determining spousal support, there are several factors the court considers. Two common factors are: (i) the duration of the marriage, and (ii) the standard of living of the spouses established during the marriage. Regardless if the marriage is opposite-sex or same-sex, the factual circumstances of every divorce are different; however, these factors could disproportionately affect the “gay gray divorce,” as opposed to a “gray divorce.”
Since same-sex couples were only granted the right to marry by the Supreme Court in 2015, it is common that “gay and gray” couples have been in a long-term relationship before marrying. This means, when the court considers the foregoing factors, the length of marriage may only be a few years; however, the relationship may span decades.
Whether you are prosecuting or defending the claim, it is clear, there are pros and cons. For the spouse seeking spousal support, it seems unfair that the Court may only consider the length of the marriage, as opposed to the length of the relationship. On the other hand, the spouse defending against the spousal support claim may benefit from the factors, as the court may be compelled to shorten the length of spousal support based upon the length of the marriage, or may only consider the standard of living during the marriage.
The other common claim is equitable distribution. Like spousal support, there are a number of factors the court will consider in dividing the assets and debts. However, before the court may divide the property, the judge will classify the property as marital or separate. Generally, only marital assets and debts are subject to distribution by the court. Marital property is all personal and real property acquired from the date of marriage until the date of separation or divorce. Separate property is all personal and real property acquired before the date of marriage, or by one spouse, at any time, by gift, bequest, devise, or descent. Again, the court’s classification of property may disproportionately affect the “gay gray divorce,” as opposed to a “gray divorce.” Because same-sex couples may have acquired assets and debts throughout the length of their relationship, but may only have been married a short period of time, the classification of property may, or may not, be in one party’s favor.
With the “gray divorce” on the rise, even though same-sex couples are divorcing at a lesser rate, it is important for same-sex Baby Boomers to meet with an experienced family law attorney. Whether you are contemplating marriage, or were recently married, although it may not be romantic, understanding your options and the potential impact the divorce laws may have on your future is imperative. Having an experienced family law attorney to advocate on your behalf is essential, especially as the laws continue to evolve following the Supreme Court’s decision in 2015.
info: Amanda Cannavo is a family law attorney at Sodoma Law, P.C. of Charlotte, N.C. She holds board admissions in North and South Carolina and attended SUNY Buffalo Law School.