Same-sex divorce – Challenges and rights

Same-sex marriage became legal in New Mexico in December 2013, affording same-sex couples the same rights to marry and divorce as their heterosexual counterparts. The marriage and divorce process is the same for same-sex and heterosexual couples in the state, following the same legal procedure and requiring the same legal documentation. However, there are some areas that may present a challenge during same-sex divorce proceedings. 

Division of Property 

Because same-sex marriage was only legalized in the state of New Mexico in late 2013, many homosexual relationships were already well established by the time of marriage. When seeking a divorce, however, only community property acquired during the course of the marriage is considered for division. This nuance can place couples at a disadvantage who acquired a home, joint wealth and other assets together prior to marriage but are now facing a dispute when it comes to how to legally separate this non-marital property. Law firms that are experienced in the area of LGBTQ+ divorce often recommend that couples whose relationship is well established and who have acquired significant joint assets sign a prenuptial agreement [1] prior to marriage to protect their interests in the event of a later divorce or a postnuptial agreement that can be entered into after marriage. Couples should seek an amicable outcome that takes into account the life they had built together prior to marriage, in order to reach a mutually acceptable solution that is fair to both parties. For example, if one party is going to keep the marital home, the other may be entitled to a greater proportion of liquidated or physical assets. The court of New Mexico typically seeks a 50/50 division of the value of joint assets, but the 50/50 division need not be an even split of all assets, so long as the net effect equates to 50/50. The Court will additionally honor a different split in cases where it can be proven that this arrangement is fair and justifiable for all parties. This typically seen when both spouses are in agreement. 

Spousal Support 

Again, many same-sex couples will have been in a relationship that far predates their actual marriage and it is possible that in some cases one party will be less financially secure than the other. Because New Mexico only recognizes the length of the marriage and not of the relationship as a whole, this can have a dramatic impact on the amount of spousal support that may be ordered. Spousal support must be requested by a spouse during divorce in situations where they can demonstrate a need for ongoing financial support. This will require them to demonstrate they will be unfairly disadvantaged following the divorce if spousal support is not granted. Spousal support is unlikely to be granted for a period that exceeds the duration of the marriage except in the case of 30+ year marriages. However, in certain circumstances it may be possible to argue that the parties’ relationship be taken into account given the prohibition on marriage until 2013. 

Child Custody 

Child custody laws in New Mexico are the same for LGBTQ couples as they are for heterosexual couples, with the court of New Mexico never basing a decision on the sexual orientation, gender, economic status, race or education level of either parent but instead prioritizing the best interests of the child(ren). In a same-sex divorce, this situation may be complicated if one of the spouses did not legally adopt the other spouse’s biological child who was born prior to the parties’ marriage. However, in most instances, the case of Chatterjee v. King [2] sets a precedent that the psychological bond between the non-biological parent and the child should be taken into consideration.  . 

Even though same sex couples seeking a divorce have a few extra hurdles to clear in reaching an acceptable dissolution of their relationship, with the support of a law firm that is experienced in LGBTQ+ family law issues, these challenges can be overcome and a successful outcome can be achieved.  To find out more or discuss your case, contact the Law Office of Dorene A. Kuffer today. Our experienced and compassionate team will be happy to help you start writing the next chapter of your life.   


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