Spousal Support in Same Sex Divorce
Same sex marriage has been legally recognized in New Jersey since October 2013 following the Superior Court’s ruling in Garden State Equality v. Dow, and more recently addressed again by our Supreme Court in Obergefell v. Hodges.
How does a New Jersey Court address spousal support in same sex divorce cases?
Spousal support is one of the central issues that appear before our Courts in same-sex divorce cases. Because same sex marriage has only been legal for a few years, case law addressing spousal support and equitable distribution of assets is still in the process of being established.
While New Jersey alimony statutes prescribe a number of factors in determining spousal support awards, one of the key factors is the length of the marriage. Because same sex marriage has only been legal for such a short amount of years, same-sex spouses at a disadvantage, when moving against one another in a divorce for alimony. Even if a same sex couple has been living together for years before the marriage and the divorce, only the period of time that they were legally married will be taken by the Court into consideration when ordering alimony. While arguments can be made as to the length of the marital relationship, proving a longer term that the legal length of the marriage can be and often is an uphill battle.
The cohabitation argument has been addressed in the context of heterosexual couples in McGee v. McGee, where the New Jersey Appellate Division held that “extent of actual economic dependency, not one’s status as a spouse, must determine the duration of support.” Because of this, courts must consider the time that same sex couples spent in a committed relationship prior to the actual date of marriage. This may also be an important consideration in determining what type of alimony can or may be awarded in your case by the hearing Court.
How are assets equitably distributed in NJ same sex divorces?
New Jersey is an equitable distribution state, which means that upon divorce, marital assets are divided in a way that is “fair” to both spouses. In New Jersey, equitable distribution involves the following analysis:
- Determining what property will be part of the equitable distribution (marital property vs. non-marital property)
- Determining the value of the marital property
- Distribution of the marital property
For more information, contact The Elfant Rickett Law Firm today at 201.968.5700 or send us a message online.