One Question, Three Lawyers
Dear Splitopia: We’re a same-sex couple and we got married in 2012, but have been together for 20 years. We didn’t marry earlier because we couldn’t. How does that affect custody and also property?
Our Panel Says:
Michael Stutman: Child custody is determined by the best interests of the child. So the length of time you’ve been together is not, in itself, all that determinative. However given your history, there is probably a lot of evidence about who has been the primary parent (if anyone), and how the child care responsibilities were allocated between you. There is also plenty of evidence as to each parent’s abilities/competency/inadequacy. In terms of property distribution, some states consider “pre-marital” acquisitions, but most don’t. The rights to property acquired by you two while not married are determined outside of divorce property distribution statutes. For example if you two purchased a valuable piece of art before you got married, you likely received a “bill of sale” which will be pretty determinative of ownership.
Michele Zavos: First, it’s important to understand that most of family law is based on the state or jurisdiction where you live. From the time you were married, a court will consider its laws to determine how your property is distributed. On the West Coast, there tends to be a determination of marital property using a principle called “community property.” On the East Coast and most of the rest of the country we use “equitable distribution.” There also may be issues regarding an alimony award, depending on the facts of your marriage. However, the time you were together before you got married almost certainly will not be viewed as part of your marriage. Accordingly, assets that you accumulated before marriage and never titled as part of your marriage, will probably be distributed according to title, or who owns them. There are arguments to be made where one partner (pre-spouse) could say that he or she contributed so much to the property that it would be unfair ( but in legal language) for the other partner to keep it, even if the property is in only one partner’s name. These laws are complex so you need to consult an attorney in your jurisdiction who is familiar with both marriage and partner issues. Some states and jurisdictions even have Domestic Partnerships that are very much like marriage and may impact your separation. With respect to custody, if your child was born during your marriage, there should be a “marital presumption” applied to custody, visitation and child support determinations. If the child was born before you got married, and you did not obtain a “second-parent” or “step-parent” adoption, the nonbirth or non-adoptive parent may have a difficult time proving he or she is a parent, but again, that depends on the laws of your jurisdiction.
Janice Green: Only one thing is certain: Gay marriage, and therefore gay divorce, is now available in all fifty states. What is uncertain is how assets acquired and obligations incurred by a couple before the US Supreme Court's ruling in the Obergefell case or before the couple has entered into a formal marriage, will be handled in any subsequent divorce. The answers will likely vary by state.
Before any divorce is on the horizon, definitely sooner rather than later, gay couples should consult with experienced family law counsel. If the couple had a partnership agreement, a cohabitation agreement, a “premarital” or “pseudo-marital” agreement between them regarding what property belongs to whom and who would pay what debts, they should find out how their situation changes now that their marital estate may be influenced, owned and managed in accordance with new rights. The couple may want to modify, amend, or revoke such prior agreements and make new ones based upon this major shift in their legal landscape. To do this now—when both parties are on the same page and divorce is not in the wind—makes a ton of sense. My crystal ball says that these divorces in the years ahead are going to be some of the most interesting, complex, and costly. Your crystal ball is saying you should consult with an experienced attorney about this seismic change in the law and how it could influence your specific scenario.
About our Panel:
Michael Stutman has more than 30 years of family law experience, handling both settlements and court trials. Michael is Immediate Past President, American Academy of Matrimonial Lawyers, New York Chapter, having previously spent two years as Vice President. He is also a Fellow of the Academy and serves on its National Board of Governors. Michael is also the author of Divorce in New York, published in November 2013.
Janice Greene is a family law attorney who has been practicing in Austin, TX, for the past 35 years. She is the author of Divorce After 50: Your Guide to the Unique Legal & Financial Challenges (NOLO, 2013). She is Board Certified in Family Law by the Texas Board of Legal Specialization, a Fellow in the American Academy of Matrimonial Lawyers, and has been named to Best Lawyers in America, and as a Texas Monthly Super Lawyer. For the past 10 years, she’s focused exclusively on collaborative divorce.
Michele Zavos is the founding partner at the Zavos Juncker Law Group, PLLC, is a long-time advocate for all kinds of families, both nationally and locally in the Washington metropolitan area. She and her firm have helped craft legislation to protect legal rights for families headed by same-sex couples, won important cases in the District of Columbia, Maryland and Virginia, and worked with thousands of clients.
And now, some legalese:
The information in this blog post is provided for general purposes only. It may not reflect the current law in your county and doesn’t replace legal advice. This post is not intended to be a substitute for legal counsel. No attorney-client relationship has been established by reading the post.