North Carolina LGBT Divorce

The legalization of same-sex marriage brought equal rights to LGBTQ couples across the United States, including the right to divorce. While North Carolina treats same-sex divorces the same as heterosexual divorces under the law, LGBT couples often face unique challenges during the dissolution of their marriages.

Same-Sex Divorce Laws in North Carolina

North Carolina law makes no distinction between same-sex and opposite-sex marriages when it comes to divorce proceedings. Following the 2015 Supreme Court decision in Obergefell v. Hodges, which legalized same-sex marriage nationwide, LGBTQ couples gained full access to marriage rights and protections. This landmark ruling also meant that same-sex couples became subject to the same laws governing divorce, property division, child custody and support, and spousal support as heterosexual couples.

The journey to marriage equality in North Carolina began slightly earlier than the nationwide ruling. In October 2014, a federal judge invalidated North Carolina's ban on same-sex marriage, allowing LGBT couples in the state to marry before the Supreme Court's decision extended this right across the entire United States. Since then, thousands of same-sex couples have married in North Carolina, and inevitably, some of these marriages have ended in divorce.

Despite legal equality, same-sex divorcing couples may encounter distinctive challenges that heterosexual couples typically don't face, particularly regarding child custody matters, the division of property acquired before legal marriage was possible, and navigating a legal system that is still adapting to these relatively recent changes.

Requirements for Filing a North Carolina LGBT Divorce

Before you can file for divorce in North Carolina, whether you're in a same-sex or opposite-sex marriage, you must meet specific legal requirements. Understanding these prerequisites helps you determine when you're eligible to begin the divorce process.

Residency Requirements

At least one spouse must have been a resident of North Carolina for a minimum of six months immediately before filing for divorce. This requirement applies regardless of where you obtained your marriage license. If you were married in another state but currently live in North Carolina, you can file for divorce here as long as you meet the residency requirement.

Separation Period

North Carolina requires couples to live separately for at least one year and one day before a divorce can be finalized. This separation must be continuous, meaning you cannot reconcile and live together during this period without restarting the clock. During the separation, at least one spouse must have intended for the separation to be permanent.

The separation requirement means living in separate residences. Simply sleeping in different bedrooms within the same home does not constitute legal separation in North Carolina. This can create financial challenges for couples who cannot afford to maintain two separate households, but the requirement remains firm.

Grounds for Divorce

North Carolina is a no-fault divorce state, which means you don't need to prove wrongdoing by your spouse to obtain a divorce. The primary grounds for divorce are:

• One year of separation: The most common basis for divorce in North Carolina
• Incurable insanity: A rarely used ground requiring three years of separation due to mental illness and expert testimony

Most same-sex couples, like heterosexual couples, pursue divorce based on the one-year separation ground. This approach avoids the need to prove fault or assign blame, which can make the divorce process less contentious.

Division of Property in LGBT Divorces

Property division represents one of the most complex aspects of any divorce, and same-sex couples may face additional complications due to the relatively recent legalization of their marriages. North Carolina follows the principle of equitable distribution, which means marital property is divided fairly but not necessarily equally between spouses.

Marital vs. Separate Property

Understanding the distinction between marital and separate property is crucial:

Marital property includes:

• Assets and debts acquired during the marriage
• Income earned by either spouse during the marriage
• Increases in value of property during the marriage
• Retirement benefits accrued during the marriage

Separate property includes:

• Assets owned before the marriage
• Inheritances received by one spouse
• Gifts given specifically to one spouse
• Property acquired after the date of separation

The classification of property can become complicated when couples cohabited for years before they could legally marry. For example, if you and your partner lived together for ten years before same-sex marriage became legal and then married for five years before separating, North Carolina courts will typically only consider the five years of legal marriage when dividing property.

This limitation can significantly impact the equitable distribution of assets and debt, potentially disadvantaging the partner who contributed less financially during the legally recognized marriage period but may have contributed substantially during the years of cohabitation.

Factors Affecting Property Division

When determining how to divide marital property, North Carolina courts consider numerous factors:

• The income and earning capacity of each spouse
• The duration of the marriage (not including pre-marriage cohabitation)
• The age and physical and mental health of both parties
• The contribution of each spouse to the other's education or career advancement
• Tax consequences of the property division
• Any debts or liabilities of either spouse
• The liquid or non-liquid nature of marital property
• Each spouse's separate property
• The standard of living established during the marriage

Judges start with the presumption that an equal division of marital property is fair, but they may order an unequal distribution if circumstances warrant it.

Spousal Support and Alimony Considerations

Same-sex spouses have the same rights to request and receive spousal support as heterosexual couples. Alimony in North Carolina is designed to help a financially dependent spouse maintain a reasonable standard of living after divorce.

Types of Spousal Support

North Carolina recognizes several forms of spousal support:

• Post-separation support: Temporary financial assistance provided during the divorce process
• Alimony: Ongoing support payments made after the divorce is finalized
• Lump-sum alimony: A one-time payment instead of monthly installments

The court evaluates multiple factors when determining whether to award alimony and how much should be paid:

• The financial needs of the dependent spouse
• The ability of the supporting spouse to pay
• The length of the marriage
• The standard of living during the marriage
• The earning capacity and marketable skills of each spouse
• The contributions each spouse made to the other's career or education
• The relative assets, debts, and income of both parties
• The physical and mental health of both spouses
• Whether either spouse will receive property that produces income
• Tax consequences of the alimony award

Pre-Marriage Cohabitation

An important consideration for many LGBT couples is the period of cohabitation before legal marriage became possible. Some jurisdictions may consider how long spouses lived together as a committed couple before they could legally marry, using similar factors to evaluate the nature of that relationship. This consideration can be particularly significant for couples who maintained a marriage-like relationship for many years before the law recognized their union.

Child Custody and Support in Same-Sex Divorces

Child custody issues often present the most challenging aspects of LGBT divorces in North Carolina. The legal landscape surrounding parental rights for same-sex couples continues to evolve, and understanding your rights is essential to protecting your relationship with your children.

Biological Parent vs. Non-Biological Parent

When both parents' names appear on the birth certificate, North Carolina courts apply the same custody standards used in heterosexual divorces, focusing on the best interests of the child. However, complications arise when only one spouse is the biological parent and the other has not legally adopted the child.

In cases where one spouse is the biological parent and the other is not:

• The biological parent typically has presumed legal rights to the child
• The non-biological parent may face significant challenges securing custody or visitation rights
• Without legal adoption, the non-biological parent may have limited or no enforceable rights to maintain a relationship with the child

Establishing Parental Rights

To protect parental rights, non-biological parents should consider:

Adoption

The most secure way to establish legal parental rights is through adoption. When the non-biological parent legally adopts the child, they gain the same rights and responsibilities as the biological parent.

Birth certificate inclusion

Having both parents' names on the birth certificate from the time of birth provides strong evidence of parental intent and rights.

Co-parenting agreements

While not a substitute for legal adoption, a written co-parenting agreement demonstrates both parents' intent to raise the child together and can support claims for custody or visitation rights.

When Non-Biological Parents Can Seek Custody

Under North Carolina law, a non-biological parent may be able to seek custody or visitation if they can prove:

• The biological parent acted inconsistently with their constitutional rights as a parent
• An established parent-child relationship exists
• The biological parent consented to or encouraged the development of a parental relationship between the child and the non-biological parent

Courts consider several factors to determine whether such a relationship exists:

• Presence at the child's birth
• Providing financial support for the child's needs
• Participation in daily care and decision-making
• Duration and quality of the relationship with the child
• Both parents hold themselves out as the child's parents to family, friends, and the community
• The existence of a co-parenting agreement

Child Support Obligations

When both parents are legal parents (either through biology, adoption, or court order), child support follows the North Carolina Child Support Guidelines. These guidelines calculate support based on:

• Each parent's gross income
• The number of children
• Health insurance and childcare costs
• The custody arrangement

If the non-biological parent did not adopt the child and does not have legal parental rights, they typically cannot be required to pay child support, nor can they claim rights to custody or visitation.

Special Challenges Unique to LGBT Divorces

While North Carolina law treats all marriages equally, same-sex couples navigating divorce may encounter specific challenges that require careful consideration and planning.

The Marriage Timeline Issue

Perhaps the most significant challenge facing LGBT divorces is the relatively short period during which same-sex marriage has been legal. Many same-sex couples lived together as committed partners for years or even decades before they could legally marry. Unfortunately, North Carolina courts generally only recognize the period of legal marriage when making decisions about property division, alimony, and other divorce-related matters.

This limitation can create inequities:

• Retirement accounts may only be divided based on contributions during the legal marriage, not the entire relationship
• The length of the marriage calculation may not reflect the true duration of the partnership
• Spousal support determinations may not account for career sacrifices made during the pre-marriage period
• One partner may lose out on property they helped acquire during years of cohabitation

Navigating Social and Family Challenges

LGBT couples may face additional stressors during divorce that heterosexual couples typically don't encounter:

• Lack of family support or acceptance
• Workplace discrimination concerns
• Community pressure or judgment
• Limited access to LGBT-friendly legal and mental health professionals
• Difficulty finding appropriate support groups or resources

These factors can make an already difficult process even more emotionally challenging, underscoring the importance of finding supportive legal representation and mental health resources.

Documentation and Proof

Same-sex couples may need to provide more extensive documentation than heterosexual couples to establish:

• The nature and duration of their relationship
• Financial contributions to shared property
• Parental relationships with children
• Cohabitation history
• Joint financial management

Keeping thorough records of financial transactions, property purchases, parenting involvement, and relationship milestones can strengthen your position in divorce proceedings.

Working with Family Law Attorneys Experienced in LGBT Issues

Choosing the right attorney can make a significant difference in the outcome of your divorce. Look for family law attorneys who:

• Have specific experience representing LGBT clients in divorce cases
• Understand the unique challenges facing same-sex couples
• Stay current on evolving laws affecting LGBTQ families
• Demonstrate cultural competence and sensitivity
• Have relationships with LGBT-friendly experts, evaluators, and mediators
• Show a track record of successful outcomes in cases similar to yours

Don't hesitate to ask potential attorneys about their experience with LGBT divorce cases during initial consultations. You deserve representation from someone who understands your specific situation and will advocate effectively for your rights.

Protecting Your Rights

Whether you're considering divorce or want to protect yourself in case your marriage ends, several proactive steps can safeguard your interests:

Prenuptial and Postnuptial Agreements

These agreements allow you to determine in advance how property will be divided and whether spousal support will be paid in the event of divorce. While not romantic to consider, these documents provide clarity and can significantly reduce conflict if the marriage ends.

Adopt Your Children

If you're the non-biological parent, legal adoption is essential to securing your parental rights. Don't assume that being married to the biological parent or having your name on the birth certificate is sufficient protection.

Document Everything

Keep detailed records of:

• Financial contributions to joint property
• Time spent caring for children
• Career sacrifices made for the relationship
• Joint financial decisions and management
• The history of your relationship, including pre-marriage cohabitation

Create Co-Parenting Agreements

Even if you've adopted your children, a written co-parenting agreement can provide additional clarity about both parents' intentions and expectations regarding child-rearing responsibilities.

Maintain Separate Legal Counsel

Each spouse should have their own attorney who represents their individual interests, particularly when negotiating separation agreements or prenuptial agreements.

The Divorce Process

Moving Forward After Divorce

Divorce marks the end of a marriage but also the beginning of a new chapter in your life. As you move forward:

• Update legal documents including wills, powers of attorney, and beneficiary designations
• Modify insurance policies to reflect your new marital status
• Update your name on official documents if you choose to change it
• Seek support from friends, family, or support groups
• Consider therapy to process the emotional aspects of divorce
• Focus on building a stable environment for your children if you have custody or visitation
• Take time to heal before entering new relationships

The legal landscape for same-sex marriage and divorce continues to evolve, and while significant progress has been made toward equality, LGBT couples facing divorce must navigate both legal and social challenges.