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What makes property division challenging for same-sex couples?

| Jan 4, 2021 | Divorce |

Thanks to the 2015 landmark Supreme Court decision Obergefell v. Hodges, the LGBTQ community now enjoys the right to marry. This includes the right to end a marriage as well. Still, even with marriage equality the law of the land, same-sex couples still have unique challenges, particularly when it comes to dividing up marital property in a divorce. 

Property division can be a tumultuous part of divorce to begin with. It might be even more troublesome for you as a same-sex spouse. According to CNBC, if you get to divorce court, a judge might not even agree when your union actually started. 

When a same-sex union begins

If you were part of a same-sex couple before the Obergefell decision, you likely lived with your partner and shared many assets between you. Once the Supreme Court legalized same-sex marriage, you had the opportunity to make your union official in the eyes of the law. Still, emotionally and logistically, you feel your union truly began years before Obergefell. 

Deciding the length of your union

If you divorce your same-sex spouse, a judge will have to determine the true length of your union for the purposes of dividing your marital property. Some judges may feel inclined to count your cohabitation together before marriage as part of the time of your union. However, a judge might date your union no further back than the Obergefell decision. 

Limiting your union to the time since Obergefell can be a problem if you were the low earning spouse in the relationship. If a judge only counts the marital assets from your legally recognized marriage, you might not get as much spousal support as you would if a judge counted the full period of your union. 

Proving the length of your relationship

There are ways you can try to convince a judge that you had a viable relationship with your same-sex partner before Obergefell. You might produce documents showing a joint ownership of a home, a shared bank account or a jointly owned credit card. You may also have loan documents and bills with your name and your spouse’s name on them. Still, there is no guarantee a judge will consider these arguments, so prepare yourself for a number of possible outcomes. 

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