Before relevant case law surfaced declaring bans on same-sex marriage to be unconstitutional, same-sex divorce was not a topic that was widely addressed — there was not legal marriage to dissolve. That is not to say that same-sex couples did not split up, but before the Supreme Court’s ruling in Obergefell v. Hodges, many same-sex couples entered into civil unions or other types of contracts which, in contrast to marriages, do not dissolve by divorce.
Today, many family law attorneys find themselves traversing new territory when it comes to same-sex divorce. You may be asking yourself, “Aren’t same-sex divorces the same as any divorce?” In some cases, the answer to your question would be yes. However, many same-sex couples may face unique challenges when it comes to dissolving their marriage.
One issue couples may face is determining how to fairly divide the assets and debts which were accumulated during the marriage, known as the equitable distribution of marital property. There is a presumption under North Carolina’s equitable distribution laws which provides that marital assets and debts will be divided equally. In Court, sometimes marital assets and debts are not divided exactly 50/50 because there are multiple factors which might allow for one person to receive more or less than half of the marital estate depending on each couple’s unique circumstances.
There is a looming issue relevant to equitable distribution that is unique to same-sex divorce. Specifically, North Carolina did not legally recognize same-sex marriage until 2014. Other states allowed, and legally recognized, same-sex marriages before 2014. When a same-sex couple married before 2014 in another state which allowed and recognized same-sex marriage at that time is now separating in North Carolina, a state that did not begin legally recognizing same-sex marriages until 2014, some may ask: What would be the date of marriage for purposes of identifying which assets and debts make up the marital estate for purposes of equitable distribution?¹
Let’s break down the basics. In North Carolina, “marital property” is defined as all real and personal property acquired by either spouse during the marriage until the date of separation. It is important to understand that, in North Carolina, the timeline for identifying the marital assets and debts to be divided starts from the date of marriage until the date of separation. The date of separation occurs when a couple moves into separate residences with one party having the intent to continue living separate and apart from one another permanently.
Once the assets and debts that comprise the marital estate are identified, the next step is to consult with an attorney, and possibly a valuation professional, to work toward assigning a value to each of the marital assets and debts. The values typically used are from the date of separation, not the date of marriage. After the values have been determined, you can work with your attorney and the opposing party, or his or her attorney, to determine the best way to divide the marital estate.
When a same-sex couple in North Carolina wants to get divorced, the timeline for identifying and valuating the marital estate comes into question. Consider the following scenario:
A same-sex couple is married in State A (a state that has allowed and legally recognized same-sex marriages since 2004) in 2007.
Spouse A purchased a boat with cash in full in 2009.
This same-sex couple has now separated in 2019 in North Carolina, and Spouse B has made a claim for equitable distribution.
If the same-sex couple’s date of marriage is recognized as the 2007 date, before Spouse A purchased the boat, then that boat would be considered marital property because it was acquired during the marriage and Spouse B would likely be entitled to (presumptively) 50 percent of its value.²
However, if the same sex couple’s date of marriage is recognized as the 2014 date when same-sex marriage was legally recognized in North Carolina, after Spouse A purchased the boat, then that boat may be considered separate property because it was acquired before the marriage, and Spouse B would not likely be entitled to any share of its value.
As you can see, this aspect of family law is evolving. Legal precedent will soon be forming. It is essential to hire a knowledgeable attorney with experience in advocating for same-sex clients and who has a thorough understanding of family law.
Family law attorney Zachary Porfiris practices with Sodoma Law, based in Charlotte, N.C. He has a background in legislative research from his time spent as a law clerk for the South Carolina Legislative Council.
¹Comparable to the United States Supreme Court Case, McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Dept. of Business Regulation of Florida, et al., in order for a North Carolina Court to provide same-sex couples “meaningful backward-looking relief,” the State of North Carolina could recognize same-sex marriages as lawful preceding to the date that the marriage was actually celebrated. bit.ly/2WAvgYp.
²According to the North Carolina Court of Appeals case, Armstrong v. Armstrong, laws affecting equitable distribution that change after the parties were initially married should be applied as they currently exist when the parties seek divorce and equitable distribution. bit.ly/2E2z4KT. Thus, North Carolina would arguably apply the earlier date of marriage for identifying marital property for purposes of equitable distribution since North Carolina currently recognizes out-of-state marriages as legally valid. In so following, Spouse B would arguably be entitled to 50 percent of the boat’s value.