With same sex marriage legal in New Mexico and nationwide, same sex divorce is too. Couples face many of the same issues upon divorce that heterosexuals do, with some added complications that are unique to same sex marriages. If your marriage is ending and you’re not sure what to do next, you need a dedicated family law attorney. And if you’re a same sex couple, you deserve a lawyer who understands the challenges that often come with these divorces.
Matteucci Family Law works with divorcing same sex couples to help them understand their legal options and achieve the best outcome for them and their families. Attorney Bob Matteucci is ready to get started on your case today.
History of New Mexico Same Sex Divorce and Family Law
Same sex marriage has been legal throughout the United States since the 2015 Supreme Court decision of Obergefell v. Hodges. However, it was already legal prior to that in New Mexico. In 2013, the New Mexico Supreme Court ruled in Griego v. Oliver that the state constitution requires equal treatment for gay and lesbian couples seeking a marriage license.
Even before that, there were indications that change was coming in the state. Several counties had begun issuing marriage licenses to gay and lesbian couples before the New Mexico Supreme Court stepped in. The same rights, protections, and responsibilities that apply to heterosexual marriages were thereby extended to same sex couples, including necessarily the right to seek a divorce.
Before the 2013 New Mexico Griego ruling, the state Supreme Court extended custody and visitation rights to gay and lesbian couples. In Chatterjee v. King, the Court decided that parties in same sex relationships have the same right to seek parentage, custody, and child support orders as any other parent.
Taken together, these decisions effectively apply New Mexico family law jurisdiction to gay and lesbian spouses and parents. They allow full participation for all citizens in custody, child support, and other domestic matters. As with heterosexual couples, problems may arise in a marriage that ultimately lead a same sex couple to request a divorce.
Options for Same Sex Divorce
There are multiple approaches to how to obtain a same sex divorce. Depending on the circumstances in your case, you may have the following options:
- Uncontested divorce. Same sex spouses who agree on how to resolve everything, including asset division and child custody, can choose an uncontested divorce. A knowledgeable attorney will be essential to properly draft, execute, and filing the appropriate divorce papers.
- Traditional divorce: Most same sex spouses take this route when seeking a divorce. In this type of divorce, both parties retain attorneys and the New Mexico statutes are followed in regards to how the income-earned is divided during the divorce process, and also in regards to how financial information is exchanged between both parties. During a traditional divorce, the parties’ attorneys attempt to settle the case without bringing it to court. If the attorneys are not able to settle the case, the parties will participate in a one-day mediation process called a settlement facilitation. During a settlement facilitation, a retired family law judge or an experienced family law attorney is brought in as a mediator and helps each party and their attorney understand their case and negotiate a divorce settlement. While most settlement facilitations have successful outcomes, some may proceed to court if a settlement is not reached.
- Mediated divorce. On the other hand, some same sex couples don’t quite agree on how to address all of the issues in their marriage. Or they may agree on some matters but not all of them. Mediation is likely a good option for negotiating a Marital Settlement Agreement, and a New Mexico same sex divorce attorney can help protect your rights throughout the process. In a mediated divorce, both parties retain a single attorney who is a neutral party that works to negotiate a fair settlement and files the appropriate paperwork.
- Collaborative divorce. Same sex couples often find that although they cannot save their marriage, they can work together amicably to end it. Unlike traditional divorce, in which spouses may be more focused on who wins and who loses, collaborative divorce is a process that is focused on the mutual benefits of both spouses. Bob offers collaborative services to divorcing same sex couples.
- Litigation. Of course, these options do not work for everyone. Where same sex spouses simply can’t get along or settle all of the issues in their marriage, the divorce must be litigated. Bob will try to find out-of-court solutions where possible, but he will litigate the divorce if necessary.
Issues that Arise
As with heterosexual divorce, ending a same sex marriage will implicate several issues that have to be resolved between the spouses beyond which type of divorce they will seek. Those include:
- Division of marital assets and liabilities. Who gets the property and debt from the marriage?
- Spousal support (alimony). One spouse may need support, while the other may resist it.
- Child custody and visitation. Who will have physical and legal custody, and how will the parents share time with the child?
- Child support. Courts will need to consider parents’ incomes, custody, and other factors to decide this.
- Civil domestic abuse. Domestic abuse and violence can impact any divorce, including same sex divorces.
- Modification of spousal support and child support. Special circumstances may require adjusting monthly payment amounts.
- Modification of child custody and visitation. Parents’ abilities to care for or visit their children can change over time.
Your attorney should be well-equipped to handle these issues, and able to come up with creative out-of-court approaches that could help you resolve them.
Special Circumstances that Apply to Same Sex Divorce
Of course, some issues apply uniquely to same sex divorces. Same sex marriage is still a relatively new development in both state law and throughout the country. Gay and lesbian couples did not go from being denied the right to marry to suddenly having it everywhere at once. They also didn’t specifically acquire the right to marry overnight.
Before the 2015 U.S. Supreme Court decision, many states had created legal unions that resembled marriage but weren’t quite the same thing. Among those were domestic partnerships and civil unions. On top of that, some same sex marriages took place in other countries before it being legalized here in New Mexico and the rest of the country.
When couples enter a traditional marriage outside of New Mexico and later move here, they are allowed to divorce once they’ve lived in the state for six months. However, when same sex couples move to New Mexico, they may not have a relationship that is technically considered to be a marriage. They may have a civil union, domestic partnership, or other forms of marriage. Because of the patchwork of laws that apply to same sex relationships, you need an attorney who is knowledgeable on the legal issues that may come up in your divorce.
Contact Bob Matteucci, an Experienced New Mexico Same Sex Divorce Attorney
Matteucci Family Law is committed to helping all spouses when their marriages come to an end. If you’re a same sex spouse and divorce is in your future, turn to the experience that Bob Matteucci brings to the table. Contact him today to schedule your consultation.
Matteucci Family Law Firm helps families with same sex divorce matters all across New Mexico including Albuquerque, Santa Fe, Los Lunas, and Rio Rancho.