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Divorce Resources for Women

Gay and Transgender Divorce: A Guide for LGBT Couples in NC

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The right to same-sex marriage – and divorce

In
2014, same-sex couples in North Carolina won the right to marry in the case of General Synod of the United Church of Christ
v. Cooper.
The landmark decision in Obergefell
just one year later solidified the right of same-sex couples and transgender
individuals to get married in all 50 states. While the marriage equality
movement emphasized the historic victory that was same-sex marriage, the
reality is that same-sex couples face the same marital challenges and stressors
as opposite-sex couples, and as a result sometimes end in divorce.

Divorce can be a time of emotional pain, stress, and uncertainty for anyone, but there are additional challenges that solely affect same-sex couples and transgender individuals which further complicate the process. There are unique challenges for same-sex couples regarding property distribution, spousal support, child custody and child support that opposite-sex couples do not experience during divorce proceedings and transgender and non-binary individuals may also be unfairly treated in custody disputes. We have outlined these distinctions in detail below to help you navigate the already tumultuous divorce process without added stress or confusion.

The “official” length of the marriage

 The right to same-sex marriage is still
relatively new in North Carolina, yet many couples have cohabited and
functioned in marriage-like relationships for far longer than they have been in
a legal union on paper. However, North Carolina does not recognize common law
marriage, meaning a family court in North Carolina considers only the date of a
legal marriage, regardless of how long a couple lived together beforehand.

This
is important because North Carolina is an equitable distribution state, meaning
marital property is divided equitably in a divorce between same-sex spouses,
just as with an opposite-sex couple. However, there are complications for
same-sex couples because marital property only includes property acquired since
the date the spouses were legally married. For example, let’s say you and your same-sex
partner of twenty years married as soon as you could in 2014, but the home,
car, and furniture were all purchased by your spouse alone during your
cohabitation but before your marriage. According to the law, this property
would be considered separate property, meaning it will not be equitably split
and you might be left at a disadvantage.

It
is important to note that certain assets purchased prior to the date of
marriage may be titled jointly and other avenues in the law may need to be
utilized to separate that property if the matter cannot be resolved in the
context of the divorce.  For instance,
say your house is titled in both names prior to marriage. In this case, you
would possibly have to pursue a petition to partition. This certainly may
produce unfair results for couples who are not able to resolve their divorce
amicably.

The
legal start date of your marriage also presents issues when determining
alimony. Typically, the longer the marriage, the more likely the lower-earning
spouse will receive support. With same-sex marriages, the years prior to the
marriage do not count towards the judge’s determination of spousal support. While
you may have depended on your same-sex spouse for two decades, the length of
time that the judge considers might only be the last four years.

Issues that may arise with child custody
and child support

One
of the hardest parts of divorce is settling disputes over how children will be
cared for. As a parent, you will want to remain a part of your child’s life in
any way that you can, but if you are not a legal parent you may not have any
rights to assure you receive custody or visitation. The status of legal parent
can be a bit uncertain in same-sex relationships but according to the law, you
are a legal parent if you are the child’s biological parent or have legally
adopted the child. In North Carolina, adopting your partner’s child can only
happen when the partners are married. Alternatively, neither spouse may be a
biological parent but can still become legal parents through adopting a child
together.

If
same-sex couples are both legal parents, they both have equal rights to pursue
custody. However, if only one parent is the child’s legal parent, the process
for child custody is much more complicated. Generally, if you are not a child’s
legal parent, you do not have any legal rights, including the right to seek
physical or legal custody, seek visitation, or financially support the child. However,
you may be able to remain involved in your child’s life through a parenting
agreement, or by judicial means if the court determines a legal parent has
allowed you to form a parent-child relationship regardless of your legal
status.

Issues
with child custody often arise in marriages between two women where one partner
is the biological parent, making her a legal parent automatically, but the
other partner does not take any action to become a legal parent. In the event
of a divorce, the non-biological parent has no legal rights regarding the
child. The best way to avoid such a troubling situation is through adoption. However,
if you did not adopt the child and are now going through a divorce, it may be
possible for you and the other parent to work out an agreement.

Ultimately,
in the event that you did not adopt your child and your ex is non-cooperative,
there may still be a way of obtaining parental rights in a child custody
dispute through a court order. While a legal parent’s right to authority over
their child is constitutionally protected, there are conditions that may allow
for a non-legal parent to obtain custody rights by way of judicial order. A
court can order custody to a third party or non-legal parent where it is shown
that the legal or biological parent either

  • has neglected the child;
  • is generally unfit as a parent; or
  • has acted inconsistently with their
    constitutional right as legal parent.

Acting
inconsistently with their constitutional right as a legal parent has been
interpreted to include situations in which the legal parent has knowingly
maintained a relationship with a non-legal parent, allowing a parent-child
relationship to exist between the non-legal parent and child. For example, if
your ex is the sole legal parent but you have co-parented your children
together for the full length of their lives, you may have a way of receiving
custody rights.

In
determining if the legal parent has permitted a non-legal parent to form a
parent relationship, a judge will consider a variety of factors ranging from
the presence of the non-legal parent at the birth, to the intent of the
biological parent, nature of the relationship to the child, and how the parties
held themselves out to others. The judge will also consider how the household
was run, including the nature of joint decision making, or sharing of expenses.

These
factors were outlined in the 2008 case of Heatzig
v. MacLean
, and expanded in 2017 with the case of Moriggia v. Catselo. If you are in the position of a non-legal
parent, any actions that would suggest your co-parent allowed a parent-child
relationship to exist between you and your child will help establish your
rights in a custody dispute.

Additional concerns for transgender and non-binary individuals

              The decision to transition often comes with many challenges and judgment. Unfortunately, these disadvantages plague the area of divorce law as well. The above-mentioned child custody complications may prove even more problematic for transgender or non-binary individuals. This is because a former spouse or possibly a judge might try to use a parent’s gender identity or transition as a basis for limiting or even denying custody or visitation, arguing that the parent’s gender identity will adversely affect a child’s well-being.

While there is no case law on this subject in North Carolina, courts in Nevada and Kentucky have completely terminated a parent’s relationship on the basis of gender identity. On the other hand, a Colorado court concluded that there was no evidence that a transgender or non-binary parent’s home was an environment that would endanger the child’s emotional or physical development. Because this area of the law is still underdeveloped, it is best for transgender parents to obtain legal parent status and participate fully in the lives of their children to avoid problems or discrimination should custody become an issue in a divorce.

 

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