Same sex couples who are splitting up face many of the same issues upon divorce that heterosexuals do. However, there are some additional hoops that some same sex partners must jump through if they want to ensure they enjoy the same rights and protections as heterosexuals post-divorce.
If your same sex marriage is ending, you deserve to work with an attorney who understands the unique challenges you may face as you seek to build a new life. At Matteucci Family Law, Attorney Bob Matteucci helps same sex couples and individuals from across the state of New Mexico understand their legal options and achieve the best outcome for them and their families.
Are you Married, Partnered, or in a Civil Union and Need a Same Sex Divorce?
The United States Supreme Court extended the right of same sex couples to marry nationwide in 2015 when it released its decision in Obergefell v. Hodges. New Mexico had a bit of a head start because the New Mexico Supreme Court legalized same sex marriage in 2013, in the court case Griego v. Oliver.
Before 2013, individual counties across the state of New Mexico could decide whether or not to issue marriage licenses to same sex couples. 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.
However, the first state to legalize same sex marriage, Massachuttes, didn’t do so until 2004. Until that time, ommitted same sex couples relied on a patchwork of laws and contracts to formalize and protect their relationship.
Some states passed laws allowing same sex couples to enter legal relationships that were similar to marriage called domestic partnerships or civil unions. 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.
One of the first things Attorney Bob Matteucci does when a same sex couple approaches him about getting divorced is figuring out how the relationship was formalized. If the couple met and got married in New Mexico after 2013 — or in another state after same sex marriage was legalied there — New Mexico law only requires that one of the former partners live in this state for six months before seeking a divorce. If, however, the former couple is in a domestic partnership, civil union, or just has a lot of shared assets and debts, splitting up is a bit more complicated. 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
Many same sex couples who were in long-term, committed relationships, but prohibited from marrying one another by state law, are shocked to find out that assets and debts accumulated before their marriage remain separate property. 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.
When New Mexico legalized same sex marriage it did not retroactively recognize the committed relationships many same sex couples had already been in. So, in a divorce, assets like homes or cars that were purchased before the marriage may not be subject to division.
Attorney Matteucci helps couples negotiate a solution to this issue that is fair to both parties by helping them focus on how to move forward.
Spousal Support Payments
Spousal support is money that is paid by one former partner to another to help the recipient maintain his or her quality of life post-divorce. It is also known as alimony.
Spousal support is not paid in every divorce, but every former couple must consider whether it should be. If a divorcing couple cannot come to an agreement on spousal support, the judge in their case will step in and decide what sort of support payment, if any, is appropriate. 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. The way to get around this is to negotiate a spousal support agreement that both former partners agree is fair, and ask the court to approve it instead of waiting for the judge to do some math and spit out a number that doesn’t actually match the former couple’s life experiences.
Child Custody, Visitation & Support
Before the 2013 ruling in Griego v. Oliver, the New Mexico Supreme Court extended child custody and visitation rights to gay and lesbian couples.
In Chatterjee v. King, the 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 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.
Contact Bob Matteucci, An Experienced New Mexico Same Sex Divorce Lawyer
Matteucci Family Law is committed to helping all spouses when their marriages come to an end. If you are in need of legal assistance splitting from your same sex spouse or partner, Attorney Bob Matteucci is here for you. He is an experienced and compassionate advocate who will help you find a path forward. Contact him today to schedule a 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.
Matteucci Family Law Firm helps families with same sex divorce matters all across New Mexico including Albuquerque, Santa Fe, Los Lunas, and Rio Rancho.