Understanding Same Sex Divorce in North Carolina

Written by Jonathan Breeden

June 28, 2019

North Carolina recognized the legality of same-sex marriage in 2014. That decision was followed in 2015 by the U.S. Supreme Court finding prohibition on same-sex marriage unconstitutional, which paved the way for it to be legal in every state. Once same-sex couples could legally marry, many did so. Under the law, to end these unions, a divorce is required.

Having experienced divorce counsel is a good idea for all couples seeking a divorce, but is especially prudent for same-sex couples because of the complexity of some of the issues that arise in such a situation. At Breeden Law Office, we have represented same-sex couples who are considering divorce, and we are ready to help you.

Contact an LGBTQ divorce lawyer at (919) 661-4970, or reach out online to discuss your same-sex divorce in North Carolina.

Divorce in North Carolina

Because same-sex marriages enjoy the same legal status as heterosexual unions, the same divorce laws apply. To receive a North Carolina divorce, the following requirements must be met:

  • Separation of at least a year
  • One spouse must be an NC resident for six months before filing
  • Complete any requisite forms required in your county of residence

There may be unique considerations when determining the issues of spousal support, property distribution, and child custody in a same-sex divorce. Things can get sticky if you’ve been with your partner for many years prior to the legal marriage, or if you married in another state before it was legal in North Carolina. Issues regarding the children can be complicated, especially when one spouse is the sole biological parent.

Same-Sex Divorce Challenges

When a couple divorces, the court will consider whether an award of spousal support is necessary as a matter of equity. Typically, the length of the marriage is considered, as are the incomes of the involved parties. Because same-sex couples weren’t allowed to legally marry until 2014 in North Carolina, even if you’ve been with your partner for years prior, the judge might not consider those years in determining issues of spousal support.

North Carolina is an equitable division state when determining how to split property in a divorce. This means that if the parties can’t agree on the division of their marital property, the court will divide it in a manner that it finds fair. Such property is defined as that which was acquired after the date of your legal marriage. Since same-sex marriage was not legal in North Carolina in 2014, this may present an issue if you were with your partner years before getting wed. The court may not view any acquired property from that time as marital. Therefore, it may be subject to divorce court jurisdiction.

A seasoned same-sex divorce attorney can help you with in regard to obtaining a fair property settlement. If you were married in a state that recognized gay marriage and subsequently moved to North Carolina, an argument might be made to include that property as marital.

Child Custody and Support

A difficult area of any divorce are issues of child custody and support. For same-sex unions, it can be more problematic. If you and your spouse are both legal parents of the children and have equal rights in their care and upbringing, the issues mirror those that heterosexual couples face when they divorce.

Sometimes only one spouse in a same-sex marriage is the legal parent. Such situations arise because families started prior to legalized same-sex marriages. In North Carolina, you are a legal parent if you are the biological mother or father, or you legally adopted the child. Accordingly, if you or your spouse gave birth to a child prior to your legal marriage, an adoption had to take place afterward to provide full parenting rights to the non-biological party.

There are ways for a non-biological and non-adoptive parent to remain in a child’s life. You and your ex can agree to custody and support matters. These issues are best left to an experienced same-sex divorce attorney so that your rights are fully advanced and protected.

We Can Help with Your Same-Sex Divorce in North Carolina

Divorce is a painful time, and you need the guidance of divorce counsel sensitive to your needs. Attorney Jonathan Breeden can help you sort through the issues of your same-sex divorce so that you can move forward. To schedule an initial case consultation, contact Breeden Law Office today at (919) 661-4970.


Divorce In North Carolina: What You Need To Know

A book by Jonathan Breeden