The importance of the United States Supreme Court’s ruling in Obergefell cannot be overstated. In the eyes of the law, same sex couples now have the same rights, privileges, and responsibilities as heterosexual ones. But in some ways, the victory is more symbolic than substantive.
Bigotry and inequality still exist, even though bold faced discrimination is against the law. One place where this is clearly evident is in New Mexico’s divorce courts. There are often additional hoops that same sex partners must jump through if they want to ensure they enjoy the same rights and protections as heterosexuals post-divorce.
Attorney Bob Matteucci understands the unique challenges same sex couples face when they get divorced. He is ready to help you navigate the legal system and move forward with your post-divorce plans.
Do You Need a Same Sex Divorce? Or Will it Take More Than That to Alter Your Relationship Status?
Same sex marriage has been legal in this country for over a decade, but same sex couples have been in committed relationships for far longer than that.
New Mexico had a bit of a head start on the rest of the country when it comes to same sex marriage. While SCOTUS decided Obergefell v. Hodges in 2015, the New Mexico Supreme Court legalized same sex marriage in 2013, in the court case Griego v. Oliver.
Before that, individual counties across the state of New Mexico could decide whether or not to issue marriage licenses to same sex couples — and many did. Couples could also get married in other states or countries that recognized same sex marriage, and the state of New Mexcio would recognize their relationship. The state also recognized domestic partnerships or civil unions created under the laws of other states.
In many states, including New Mexico, same sex couples took steps to formalize and protect their relationship by making sure that both partners names were on title and contracts when assets were purchased or loans were taken out, and executed estate planning documents giving each other power of attorney. Many same sex couples still take pains to do this even post-Obergefell due to fears that it could one day be overturned.
This legal mishmash means one of the first things Attorney Bob Matteucci does when a same sex couple approaches him about getting divorced is figure out how the relationship was formalized. If the soon-to-be-ex couple is in a domestic partnership, a civil union, or just has a lot of shared assets and debts, a divorce may not be what is actually needed to separate from one another.
Attorney Matteucci assists same sex couples who want to split up, whether they are getting a divorce, or need other legal assistance to end their relationship.
Property Division in New Mexico
New Mexico is a community property state, which means there is a legal presumption that any property acquired during a marriage, or that increases in value during a marriage, is owned equally by both spouses (regardless of whose name is on the title). At divorce, the value of all this community property must be divided equally between the spouses.
Many people who were in long-term, committed, same sex relationships — but were denied the right to marry their partner — are disappointed to discover that assets they accumulated as a couple are not considered community property because they were not married at the time they acquired it. This is despite the fact that they thought they were building wealth or taking on debt as a couple, have benefited as a couple from those assets and debts, and got married as soon as the law allowed them to.
Other couples are frustrated to learn that steps they took to solidify their relationship outside of the marriage, like jointly titling assets, changed the character of assets they would now prefer were not subject to division. Or that transferring jointly owned assets to one partner or the other will have negative financial consequences.
While it is frustrating that same sex couples face these extra layers of difficulty, the reality is few divorcing couples are happy with the idea of dividing their assets 50/50. It’s a challenging task no matter who you are, but Attorney Matteucci has a reputation for helping couples in the Albuquerque area negotiate a settlement everyone can live with.
Spousal Support Payments
Spousal support, also known as alimony, is money paid by one ex-spouse to the other to help the recipient smooth their path to post-divorce life. It can also be used as a bargaining chip in situations where a couple’s assets cannot be evenly split without destroying the value or utility of the assets in question.
Spousal support is not paid in every divorce, but every former couple must consider whether it should be. The type and amount of spousal support available vary from couple to couple.
The duration of the marriage is one of the factors couples and courts use to determine appropriate alimony payments. There is no minimum amount of time a spouse has to be married to be eligible for spousal support. However, the longer a couple is married, the more likely it is that one of the former partners will receive alimony.
Same sex partners who have been in a committed relationship for decades, but only married since the law change are often frustrated the full length of their relationship cannot be counted when considering if alimony is appropriate.
Attorney Bob Matteucci has helped many same sex couples in the Albuquerque area negotiate spousal support agreements that are fair and equitable in their specific circumstances.
Child Custody, Visitation & Support
In the case Chatterjee v. King, the New Mexico Supreme court held that parties in same sex relationships have the same right to seek parentage, custody, and child support orders as any other parent. As long as both members of a same sex couple raised and supported a child and held themselves to be that child’s parents, the court will hold that both former partners have parental rights.
This can get a bit complicated if the child was only adopted by one of the partners, or is the offspring of one partner from a previous relationship, but the law is clear that New Mexico family law courts are not allowed to discriminate on child custody, visitation, or other issues on the basis of gender, sexual orientation, or sexual identity.
Attorney Matteucci helps parents who have been in a same sex relationship assert their rights and come to a custody and support agreement that is in the best interest of their child.
Serving Families With Dignity & Compassion
If you are ready to split up with your same sex spouse or partner, Attorney Bob Matteucci is ready to be your ally. He is an experienced and compassionate advocate who understands there may be extra hurdles to clear as you and your partner go your separate ways. Contact him today to schedule a consultation.