Since legalizing same sex marriage in 2013, New Jersey has provided LGBT couples with equal marriage rights and protections under state law. However, when LGBT marriages end, same-sex couples often face unique challenges that require specialized legal knowledge and understanding. New Jersey LGBT divorce proceedings follow the same legal framework as opposite-sex divorces, but specific issues regarding property division, child custody and support, alimony, spousal support, and legal parentage can complicate the divorce process for same-sex couples.
Legal Framework for Same-Sex Divorce
New Jersey same sex divorce follows the same legal procedures and requirements as divorces involving opposite-sex couples, providing equal treatment under state law.
Historical Context
New Jersey recognized civil unions or domestic partnerships beginning in 2004 and 2007, respectively, providing some legal protections before full marriage equality. The state legalized same-sex marriage in October 2013, several months before the U.S. Supreme Court's nationwide ruling in 2015. This timeline means many LGBT couples may have entered civil unions or domestic partnerships before marrying, creating unique considerations during divorce.
Equal Legal Treatment
Divorce of same sex couples in New Jersey faces the same grounds for divorce, property division principles, alimony determinations, and child custody standards as heterosexual couples. Courts apply equitable distribution to marital property, consider statutory factors when determining alimony, and prioritize children's best interests in custody decisions without regard to parents' sexual orientation or gender identity.
Procedural Requirements
To file for divorce, at least one spouse must have been a New Jersey resident for 12 consecutive months before filing. Most couples file based on irreconcilable differences (the no-fault ground requiring six months of marriage breakdown), though fault grounds remain available when appropriate circumstances exist.
Property Division Challenges
While equitable distribution principles apply equally to all divorces, same sex couples often face distinctive challenges regarding property acquired before legal marriage became available.
Pre-Marriage Cohabitation Issues
Many LGBT couples lived together in committed relationships for years or decades before same-sex marriage became legal in New Jersey. Property acquired during these pre-marriage years generally remains separate property not subject to equitable distribution, even though the couple functioned as a committed partnership. This creates potential unfairness when significant assets were accumulated during long-term relationships before legal marriage was possible.
Civil Union and Domestic Partnership Considerations
For couples, including those who entered civil unions or domestic partnerships before marrying, questions arise about whether these earlier legal relationships should be considered when determining the length of the marriage for property division purposes. While civil unions provide the same state rights as marriage, domestic partnerships offer more limited protections, affecting how property from different relationship periods is characterized.
Documenting Relationship Duration
When significant property was acquired before legal marriage, experienced divorce lawyers may argue that courts should consider the full relationship duration when applying equitable distribution principles. This requires careful documentation of when the committed relationship began, when civil unions or domestic partnerships were entered, and when legal marriage occurred, along with evidence of how property was acquired and managed throughout these periods.
Alimony Considerations for LGBT Couples
Determining appropriate alimony spousal support in New Jersey LGBT divorce cases involves applying the same statutory factors as heterosexual divorces, but unique complications arise regarding marriage length.
Length of Marriage Factor
New Jersey law considers marriage duration when determining alimony type and duration. For marriages under 20 years, alimony generally cannot exceed the marriage length unless exceptional circumstances exist. This creates challenges for LGBT couples whose legal marriage may span only a few years despite decades of committed partnership before marriage equality became available.
Standard of Living Analysis
Courts evaluate the standard of living during the marriage when determining appropriate support levels. For same-sex couples, establishing this standard may require examining the entire relationship duration, not just the years of legal marriage, to accurately assess the lifestyle the couple maintained and whether one spouse became financially dependent on the other.
Earning Capacity and Contributions
When one partner sacrificed career opportunities to support the household or the other partner's career advancement during pre-marriage cohabitation years, these contributions may not receive the same recognition they would in long-term traditional marriages. Experienced family law attorneys work to demonstrate these contributions and their impact on each spouse's current earning capacity and financial circumstances.
Child Custody and Legal Parentage
Child custody and support issues present some of the most complex challenges in New Jersey LGBT divorce, particularly regarding the legal parentage of children born or adopted during the relationship.
Biological Parental Rights
When children were conceived through assisted reproductive technology, typically only one partner has biological parentage. The biological parent automatically has legal parental rights, while the non-biological parent's rights may be uncertain without proper legal establishment of parentage.
Second-Parent Adoption
LGBT couples where one partner is the biological parent should complete second-parent adoption (also called co-parent adoption) to establish legal parentage for the non-biological parent. When properly completed, second-parent adoption ensures both parents have equal legal rights and responsibilities, including the right to custody, the obligation to pay child support, and full parental standing in divorce proceedings.
Parentage Establishment
For couples who did not complete second-parent adoption, the non-biological parent may face significant challenges establishing parental rights during divorce. New Jersey recognizes psychological parenthood in some circumstances, allowing individuals who acted as parents to children (even without biological or adoptive relationships) to potentially establish parental rights, but this requires meeting specific legal standards and is not guaranteed.
Assisted Reproduction Considerations
Many LGBT couples use assisted reproductive technology to build their families, creating unique legal considerations during divorce.
Sperm and Egg Donation
When couples use known or anonymous donors to conceive children, legal issues may arise about donor rights versus parental rights. Properly executed agreements before conception help establish that donors relinquish parental rights while intended parents assume full legal parentage.
Surrogacy Arrangements
Couples who used gestational surrogacy to have children should have completed legal proceedings establishing parental rights before or immediately after birth. These prior determinations typically protect both parents' legal status during divorce, but complications can arise if proper legal procedures were not followed initially.
Intent to Parent
New Jersey law increasingly recognizes "intent to parent" as establishing legal parentage, particularly when couples jointly decided to have children, participated together in the conception process, and both intended to serve as parents. This principle helps protect non-biological parents' rights when formal adoption was not completed.
Dissolution of Civil Unions and Domestic Partnerships
Beyond ending legal marriages, some LGBT couples need to dissolve civil unions or domestic partnerships, which involve similar but distinct legal processes.
Dissolution Process
Ending civil unions follows the same procedures as divorce, including filing dissolution complaints, exchanging financial information through case information statements, and resolving issues of property division, support, and (if applicable) child custody. Domestic partnership dissolution follows similar procedures, though fewer legal rights and obligations typically exist compared to civil unions or marriages.
Converting Relationships
Some couples who entered civil unions or domestic partnerships later married when same-sex marriage became legal. If divorcing, they may need to address both ending the marriage and dissolving the underlying civil union or domestic partnership, ensuring complete legal termination of all relationship statuses.
Property Rights Differences
Civil unions provide the same property rights and support obligations as marriage, making their dissolution complex and similar to divorce. Domestic partnerships provide more limited property protections, so dissolution may involve fewer issues regarding equitable distribution and alimony, though cohabitation agreements may affect property rights and support obligations.
Child Support Obligations
Child support obligations in LGBT divorces depend on whether both parties have established legal parentage of the children involved in the case.
Legal Parentage Requirement
Only individuals with established legal parentage can be ordered to pay child support or receive child support payments. If the non-biological parent did not complete second-parent adoption or establish legal parentage through other means, they typically have no child support obligation, though they also have no custody or visitation rights.
Support Calculation
When both parents have legal parentage, New Jersey child support guidelines apply equally regardless of the parents' gender or sexual orientation. Calculations consider both parents' income, number of children, parenting time arrangements, health insurance costs, and childcare expenses.
Establishing Obligations
In cases where legal parentage is disputed, courts must first determine parentage before establishing child support obligations. This may involve evidence about intent to parent, participation in the child's life, financial support provided, and the child's understanding of their parental relationships.
Prenuptial and Postnuptial Agreements
Nuptial agreements can be particularly valuable for LGBT couples, helping address unique property and support issues that may arise during divorce.
Pre-Marriage Asset Protection
For couples who accumulated significant assets during pre-marriage cohabitation, prenuptial agreements can clarify which property remains separate and which will be treated as marital, providing certainty that might otherwise be unclear given the relatively recent availability of legal marriage.
Relationship Duration Recognition
Nuptial agreements can acknowledge the full duration of the committed relationship (including pre-marriage years) when determining alimony entitlements and duration, helping address the unfairness that might result from considering only the legal marriage period.
Parental Rights Clarification
While nuptial agreements cannot predetermine child custody or child support, they can acknowledge both partners' intent to serve as equal parents and their agreement to complete second-parent adoptions or other legal steps establishing parental rights, creating evidence of parental intent if disputes arise later.
Working With LGBT-Affirming Legal Counsel
Given the unique challenges facing LGBT couples during divorce, working with experienced, LGBT-affirming legal representation is essential for protecting your rights and interests.
Specialized Knowledge
Experienced divorce lawyers who regularly represent LGBT clients understand the distinctive legal issues involving property acquired before marriage equality, parental rights for non-biological parents, civil union and domestic partnership dissolution, and strategies for addressing length-of-marriage issues in property and support determinations.
Sensitivity
Beyond legal knowledge, LGBT-affirming attorneys provide the sensitivity and understanding necessary when dealing with issues like coming out processes, family acceptance challenges, discrimination experiences, and the emotional impacts of ending same-sex relationships.
Comprehensive Representation
Your family law attorney should address all aspects of your divorce, including protecting parental rights through proper legal parentage establishment, ensuring fair property division despite pre-marriage relationship years, advocating for appropriate alimony considering full relationship duration, and achieving child custody arrangements serving children's best interests.
Protecting Your Rights
New Jersey LGBT divorce proceedings provide equal legal rights and protections for same-sex couples, but unique challenges arise regarding property division, parental rights, and support determinations that require specialized legal knowledge and strategic advocacy.
Whether you're ending a marriage, dissolving a civil union, or terminating a domestic partnership, understanding how New Jersey laws apply to your specific situation empowers you to protect your interests and achieve fair outcomes. The length of your relationship before legal marriage became available, whether you completed second-parent adoptions for children, and how you managed property and finances throughout your relationship all significantly affect your divorce case.
Don't navigate these complex issues alone. Consult with experienced family law attorneys who understand the unique challenges facing LGBT couples during divorce and who will advocate effectively for your rights. With proper legal representation, you can address parental rights concerns, pursue fair property division recognizing your full relationship history, and work toward appropriate support arrangements that consider the realities of your partnership.
If you're considering divorce or have been served with divorce papers, schedule a consultation with a qualified divorce lawyer experienced in representing LGBT clients.