Divorce, survivorship and aging

Legal Eagles: LGBTQ couples can take steps to protect themselves in trying times

Thanks to the U.S. Supreme Court’s highly anticipated and long-overdue decision in Obergefell v. Hodges, LGBTQ couples now enjoy the right to marry, and an increasing number of LGBTQ couples are taking their vows.

That also means more couples may someday have to face separation or divorce.

More than 10 percent of LGBTQ Americans in the U.S. are married, up from 7.9 percent before Obergefell, according to a 2017 Gallup survey. Gallup estimated that “61% of same-sex, cohabiting couples in the U.S. are now married, up from 38% before the Supreme Court legalized same-sex marriage” in June 2105.

With your marriage vows, you and your partner accept legal and financial rights and obligations to each other that single individuals don’t have, such as rights to property or to inherit. As long as the marriage survives, there may be no need to be worried about those rights and obligations.

Unfortunately, there are no guarantees you’ll remain married ‘til death do you and your spouse part. And if the marriage does not survive, you need to take steps to protect your legal and financial interests. This is especially true for marriages where one or both spouses are at or near retirement age.

Separation and divorce give rise to important financial and legal consequences, particularly if you don’t have a prenuptial agreement. Here are some important issues to consider.

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Is my spouse entitled to my retirement?

Maybe. In North Carolina, equitable distribution laws govern the division of property, including marital property, between divorcing spouses. (Other states and jurisdictions may have the same or similar laws.)

“Marital property” includes any property acquired by either or both spouses between date of marriage and date of separation, with some exceptions.

So whether your spouse is entitled to your retirement depends on whether any or all of your retirement benefits can be classified as “marital property” and, therefore, included in the marital estate that will be divided between you and your spouse.

Am I entitled to benefits under my spouse’s Social Security?

The Social Security Administration recognizes same-sex couples for purposes of determining entitlement to Social Security benefits, Medicare entitlement and Supplemental Security Income.  Assuming your spouse worked long enough to qualify for Social Security benefits, you may indeed be entitled to benefits as a surviving spouse.

Will either you or your partner be entitled to alimony?

In North Carolina, a “dependent spouse” can seek support in the form of post-separation support and alimony from the “supporting spouse.” The amount and duration of alimony is subject to negotiation, and depends upon several factors, including how long the marriage lasted, ages of the parties, the parties’ health and their relative earnings and earning capacities of the parties.

With older couples, the duration of alimony is more likely going to be influenced by how close either or both spouses are to retirement because of the obvious reduction in incomes.

If you or your spouse are at or near retirement age, information about Social Security, pension and retirement income becomes vital in negotiating the amount of alimony. Income from investments and trusts is a factor, too.

Under North Carolina law, alimony ends upon the death of either spouse. Other terminating events include remarriage or cohabitation by the dependent spouse.

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Can my spouse participate in my estate if I should die?

Under North Carolina law, the surviving spouse has the right to administer the estate of the deceased spouse and to take property under the estate, unless he or she has waived those rights in a written, legally-enforceable agreement. The waiver language is typically incorporated into a separation and property settlement agreement prepared by a family law attorney.

When would I need to take my soon-to-be ex-spouse to court?

If a separated couple can’t settle their financial and other differences through mediation or arbitration, they can litigate. Obviously, this should be the last option, except for cases involving domestic violence or similar emergency situations that mandate immediate or emergency relief.

There’s an upside of going to court. You’ll have a neutral fact finder — the judge — who will resolve your marital claims when mediation or arbitration is not successful. And there’s a downside — you’ll have a judge, who may not always agree with your point of view.

Litigation is very expensive, and should be pursued only after careful consideration by you and your attorney.

How can a family law attorney advise me if my spouse and I are separated or thinking about it? 

It’s prudent to consult a family law attorney before you separate from your spouse so you can take steps to protect your financial interests. It may, for example, be advisable in your case to immediately change the beneficiary designation under your life insurance policies or to cancel any powers of attorney which name your spouse. Whether to take those steps should be done in conjunction with an overall divorce plan that you and your attorney put together.

Divorce is never easy, and can come as a shock to family and friends when it happens later in life. But the more you understand about the process, the more you’ll feel in control. : :

info: Attorney Elizabeth T. Hodges with Horack Talley in Charlotte, N.C. is certified as a family law specialist, and is one of 35 lawyers in North Carolina selected to be a fellow in the American Academy of Matrimonial Lawyers. Reach her at bhodges@horacktalley.com.

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