What makes property division harder for same-sex couples?

Due to the landmark Obergefell v. Hodges decision by the Supreme Court, same-sex couples have the right to marry. With the right of marriage also comes the right to end it. While you may expect your same-sex divorce to go off just like other divorces, you may find dividing your marital property will prove more challenging than you thought. Same-sex couples generally face more complications when they split their marital property in a final settlement, one of which being that a judge may disagree with you about when your relationship truly started.

The start of a same-sex union

Before the Obergefell decision, same-sex couples had to opt for alternative unions if their state made them available. Common examples include domestic partnerships and civil unions. Some couples had to settle for cohabitation. After the Supreme Court made same-sex marriages legal, many couples in these arrangements decided to head to the altar and acquire a marriage license.

Even though you have achieved a legal marriage with a same-sex partner, you may have had a relationship much like a marriage for years before your wedding date. This can cause issues when you divorce your spouse and seek the division of your marital property.

Property division and your relationship

In your divorce, you’ll likely want the judge to count the full length of your relationship and not just the years of your marriage for the purposes of property division. However, some judges only date a same-sex relationship no further back than the marriage date. This could put you at a disadvantage if you were the lower earning income in the couple since you may receive less property than you had expected.

Some judges might consider dating a same-sex relationship further back if a couple produces evidence like joint bank loans, shared home ownership or other assets that prove a marriage-like relationship. However, there is no guarantee this will happen. Since same-sex divorces are a relatively new area of law, outcomes can vary widely. It’s important to have an experienced attorney at your side to ensure that you do not have to face these newer legal complications alone.

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