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Potential asset division issues in an LGBTQIA divorce

On Behalf of | Mar 12, 2020 | Divorce

LGBTQIA couples have had a long fight for equality. When the Supreme Court’s ruling in 2015 made same-sex marriage legal across the country, it was a great achievement. However, now that everyone can marry, it also means everyone can divorce. This is showing that state laws still have not caught up with the times to provide fairness to LGBTQIA couples in divorce situations. 

CNBC explains that marriage laws changed, but divorce laws never changed. This introduced a serious issue for divorcing same-sex couples that is not plaguing heterosexual couples as they try to end their marriage and get a fair settlement for property division. 

The issue 

The problem is that many same-sex couples have been together in a serious marriage-like relationship long before 2015 when they could legally marry. Since they did not have the option to marry, there is no legal recognition for the relationship prior to the actual, legal marriage. 

This is damaging to couples who have been together for 10, 15 or more years. The court will only look at the years since they were legally married when considering property division. Any assets the couple had prior to that date might not be marital property in the court’s view. 

The idea of separate property 

The lower-earning spouse will be the loser in this scenario because it is most likely that the higher-earning spouse bought most assets, or at least had a higher contribution to assets purchased before the legal date of marriage. When the court looks at assets, it considers anything a person obtains before the marriage as separate property. 

To understand how this would work, consider a couple that has been together for 20 years. They were legally married in 2015, and they divorce in 2020. Under the law, the court will only look at the years from 2015 to 2020 when figuring out marital property. If one spouse bought and paid for vehicles for the couple prior to 2015, the court will consider both vehicles the property of the spouse who bought them. They will not be part of the marital property the court will divide between the couple. 

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