Division of Property in a Divorce
For people involved in same-sex relationships, marriage means a new and beautiful way to express their love for one another. However, since marriage is legally binding, this means that LGBT divorce is also a new reality that needs to be dealt with, and this falls to a North Carolina LGBT divorce lawyer to help these couples navigate the complicated legal landscape of divorce. The laws applying to LGBT couples who are separating are not different on the surface from those governing heterosexual couples, but because LGBT marriage is such new thing, often the division of property becomes legally problematic, and a problem that requires a North Carolina LGBT divorce attorney to overcome.
Here is where the complexities lie: LGBT marriage has only existed nationwide since 2015, and many of the couples who have been married since then may have been together for many years, even living together for a long time. However, legally, only property obtained after the date of the wedding is considered to be marital property – so anything obtained before that date, even if it was obtained during a long-term relationship, is considered to be individual, or separate, property. This can cause great difficulty in property division for LGBT couples, and often LGBT divorce attorneys will be required to help. LGBT divorce lawyers are not only familiar with the laws, but also with the unique situations applying to LGBT couples, and so will be in the best position to help you.
Marital Property and Separate Property for LGBT Couples: Tips from an LGBT Divorce Lawyer in North Carolina
When a couple divorces, many couples believe that at this time, all property and assets are divided more or less equally between them – however, while this may appear to be true for heterosexual couples who have been married for many years, LGBT couples in North Carolina may have been together for years, but only married for a few years. In the eyes of the law, only property and assets obtained since the wedding day are marital property, and this is the property which is divided equitably between the couple. For this reason, it is advisable to consult an LGBT divorce lawyer as soon as possible if you are proceeding with a divorce and do not have the luxury of a prenup or similar agreement.
Here is an example of what may happen in the event of an LGBT divorce:
- A couple moved in together on September 1, 2000. The home and bank account are in only one of their names, but they share the account and live together.
- One partner has a higher paying job than the other and regularly contributes to their savings account.
- On July 12, 2015, the couple was married after the Supreme Court’s landmark ruling the previous month. The savings account contributions by the higher income spouse continue with every paycheck.
- On November 2, 2017, the couple files a Complaint about Divorce.
- Only those savings account contributions after July 12, 2015, are considered to be marital property – any contributions made in the ten years prior to that date are still the property of the higher income spouse, who made the contributions.
As you can see, what may be intended to be fair and equitable under the existing law can be quite different due to the circumstances of LGBT marriage in this country, and an experienced LGBT divorce lawyer in North Carolina is required to help work through difficulties encountered in the property division.
Be Prepared with an LGBT Divorce Attorney in North Carolina
As LGBT divorce lawyers, we see many different scenarios similar to the one described above during divorce proceedings. For this reason, it is vital to have an LGBT divorce lawyer on your side during your separation and divorce. Every situation is unique and different and has its own implications and considerations. Thus, these situations can quickly become tense and hostile. Proper preparation and evaluation of marital property and separate property by LGBT divorce attorneys is the best way to ensure that assets and rights are protected.
When a marriage fails, no matter what genders are involved, it is a painful, stressful, and trying experience for everyone. Divorce does not discriminate between heterosexual and homosexual relationships – but unfortunately, the nuances of the laws relating to property division can seem to treat LGBT couples differently.
When a marriage ends, one or both partners should seek the advice of LGBT divorce lawyers before moving forward with the divorce. With the help of an experienced LGBT divorce attorney, you will be able to make the process as easy as possible.
Contested and Absolute LGBT Divorces in North Carolina: How an LGBT Divorce Lawyer May Help
In some cases, sometimes called absolute divorce, the separation is amicable to both parties, and they are able to, with the assistance of an LGBT divorce attorney, fairly and mutually agree upon how their property should be divided between them. However, a contested divorce, also called a divorce from bed and board, is a fault-based legal action which occurs when one spouse does not agree to separate, will not leave, and refuses to facilitate with proceedings such as property distribution and alimony. In the latter case, it is ultimately up to the court to decide how to interpret the law and handle property distribution, and the assistance of an LGBT divorce lawyer is absolutely vital to your success in this situation.
LGBT marriage being legalized also means that LGBT prenuptial agreements can be considered. For the couple who had the forethought to obtain a prenup, this can be very helpful in the event of divorce. However, many couples do not consider this step before they are married.
Without a prenup in place, if it is possible, you should work to divide assets and property amicably and equitably. If there are children, try to work out a plan for parenting and child support and come to an agreement for spousal support. If you can arrive at an agreement for a peaceful separation, it will be easier for everyone, and you will only need an LGBT divorce attorney in North Carolina to file the paperwork. Unfortunately, this is often easier said than done.
In situations where an agreement cannot be reached, then you and your respective LGBT divorce attorneys will need to attend a mediation appointed by the court in order to settle your case. If this mediation still fails, then the judge will make the decision for you regarding the division of marital property and individual property. If this is the case, you will certainly need to have an experienced LGBT divorce lawyer on your side to ensure that marital property is handled as fairly as possible.
In making a determination for the fair distribution of property, the court will consider these factors:
- The length of time you were married
- The relative ages and health (physical and mental) of the couple
- The standard of living the marriage established
- Income and/or property contributed by each spouse
- Any written agreements made before or during the marriage concerning property division
- Economic circumstances of each spouse after the divorce
- The capability of each spouse to earn income, including education, training, experience, absence from the job market, parenting responsibilities, and the necessary time to pursue education and training
- The contribution of each spouse to the earning power of the other
- The contribution of each spouse to the addition, loss, appreciation or depreciation of property values
- The contribution of a spouse as homemaker
- The tax consequences of the property distribution
- The property’s present value
- Debts and liabilities
- The potential creation of a trust fund to secure foreseeable expenses for a spouse or children
- Any other factors the court may consider to be relevant
In any LGBT divorce case, the court will make specific findings based on the evidence relating to the property and assets. In general, the court will assume that each spouse made a substantial contribution, either financial and non-financial, to the acquisition, care, and improvement of property for the duration of the marriage. This assumption is rebuttable but is used as a starting point to arrive at a fair and equitable division of property.
Even with all these considerations, for couples who were living together (but not married) for decades prior to the Supreme Court decision, what may be fair and equitable in the eyes of the law may not be fair and equitable pertaining to the reality of your relationship.
Consult with an NC LGBT Divorce Lawyer to Discuss the Division of Property in Your Case
As North Carolina LGBT divorce lawyers, we know anyone faced with divorce is worried about what will become of their property and assets. You are concerned about your financial future, and as LGBT divorce attorneys, we are here to help you to protect your rights, your assets, and come to an agreement which is best for you. Contact an LGBT divorce lawyer in North Carolina today for a free consultation, and don’t face the uncertainty of divorce alone.
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