New Jersey Same-Sex Divorce Attorneys

Development Of New Jersey Same-Sex Marriage Laws

Over the last decade, New Jersey law has developed significantly in the area of same-sex marriages.  In a relatively short amount of time, same-sex couples have been granted the same rights as heterosexual couples for both marriages and divorces.  This process, however, was not without several legal hurdles and struggles in the LGBTQ community.

Irreconcilable Differences as Grounds for Dissolution

In 2007, New Jersey allowed marriages to be terminated on the legal grounds of irreconcilable differences, creating another legal rights gap between heterosexual couples and same-sex couples.  In 2007,  same-sex couples could not enjoy marriage rights like heterosexual couples and they were also limited in the means they could terminate their partnerships.

Prior to 2013, same-sex couples in New Jersey could only enter into civil unions.  If a person wanted to terminate a civil union, they would have had to prove other specific acts of the other party, such as desertion, extreme cruelty, or infidelity, as irreconcilable differences were not acceptable legal grounds for termination.  These are more difficult to prove and litigate than irreconcilable differences, which are much simpler in comparison.

New Jersey Approves Same-Sex Marriage

Everything in New Jersey changed in October 2013.  In the seminal case of Garden State Equality v. Dow, the trial court ruled that New Jersey’s laws banning same-sex marriage violated same-sex couples’ rights under the New Jersey Constitution.  Despite requests from the State to stay the decision and the Governor’s threat of appeal, the ruling went into effect, and same-sex marriage in New Jersey has been legal ever since.  In New Jersey, this meant that the marriage statutes, including those governing dissolution, now applied to same-sex couples, which also broke the “irreconcilable differences” gap.

Two Landmark Cases Supreme Court Cases Shape Same-Sex Marriage Nationwide

The United States would soon follow New Jersey’s lead in expanding same-sex couples’ rights, with two landmark Supreme Court cases transforming the status of same-sex marriage nationwide.  First, in 2013, United States v. Windsor held that the federal government must recognize same-sex marriages that have been approved by the states.  While this did not mandate that all states had to actually legalize same-sex marriage, it did prevent all states from refusing to recognize already existing marriages.

Then, in 2015, the same-sex marriage issue was decided once and for all.  In Obergefell v. Hodges, the Supreme Court held that the United States Constitution required states to license marriages between same-sex couples.  Obergefell, therefore, did not just mandate that the government had to recognize same-sex marriage, but also that state governments could not actively prohibit it.  The two decisions are huge wins for same-sex couples and advocates who have been fighting so long to gain the same rights as heterosexual couples.

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Same-Sex Divorce In New Jersey And The Unique Issues Associated With It

While the legalization of same-sex marriage in New Jersey should be seen as a joyous occasion, it is also a reality that some of these marriages will inevitably end in divorce.  All principles of divorce now apply equally to heterosexual and same-sex couples.  However, there are unique issues that can arise with same-sex divorce in New Jersey that heterosexual couples will not experience.

Length of The Marriage

For instance, the earliest possible date for same-sex marriage in New Jersey is 2013, even though many relationships certainly date back much earlier.  Two huge legal divorce areas, alimony and equitable distribution, are heavily dependent on the length of the marriage.  Lower-income spouses in same-sex divorces could be greatly disadvantaged if the length of their actual marriage is only a fraction of their overall relationship.  In the equitable distribution context, a spouse may wish to argue that the “marital” property to be divided should actually date back to the beginning of the relationship rather than the date of the marriage.  With alimony, the supported spouse would likely argue that the length of the relationship, not the marriage, should be a determining factor in the award.  These are valid arguments, as a divorcing spouse should not be prejudiced because they were not legally allowed to marry.  It will be very interesting to see how courts will handle this issue in the future.

Child Custody Issues

Another unique issue that is likely to come up during New Jersey same-sex divorce cases is child custody.  For same-sex couples, only one spouse can be a child’s biological parent.  In a custody dispute, complex legal issues can arise such as assisted reproduction and rights of psychological and non-biological parents.  While this can also arise in heterosexual divorces, any same-sex couple with children will experience at least some of these issues.  It also remains unclear to what extent, if at all, courts will consider a parent’s biological connection to a child when determining custody.  These issues are still very new and have not been widely litigated yet, so there is virtually no way to predict how these situations may play out in court.

New Jersey Same-Sex Divorce Attorneys

If you are in a same-sex marriage and may be facing a divorce, you might need the assistance of an experienced family law attorney to guide you through some very complex and unique issues.

At Lesnevich, Marzano-Lesnevich, O’Cathain & O’Cathain, LLC, our team of New Jersey same-sex divorce lawyers are experienced, dedicated and committed to helping those going through very difficult times.

Contact us today at 201-488-1161 for a legal consultation with our New Jersey same-sex divorce attorneys.