While breaking up is hard to do, some attorneys have said that the legalization of same-sex marriage makes LGBT divorces just like any other, but it may not be that simple.
While Obergefell and Windsor have offered married same-sex couples some protection and same-sex couples can now marry, it has offered same-sex couples another opportunity: the opportunity to divorce. Prior to Obergefell, same-sex couples living in Michigan whose out-of-state marriages were not recognized by the State of Michigan could not divorce. Post-Obergefell, we are seeing a number of same-sex divorces.
Post-Obergefell divorces raise many challeges regarding equitable distribution issues. Long-term relationships comprising 10, 20, and 30 years with marriages of less than 2 to 5 years present potential problems for the practitioner and ascertaining the division of property.
A judge in one county may be sympathetic to an equitable distribution argument in an LGBT divorce in which the marriage did not really start when the marriage became legal but 20 years ago when the couple would have married if they could have. Another judge may stick to the statutory requirement of the “actual date of marriage.”
In Michigan, division of marital property is usually based on equitable distribution of the property. Although there is no requirement that property awards to each party be precisely equal, there is a presumption that the division of marital property will be roughly similar. Much of the case law has established a list of factors that courts should consider in dividing marital property. The most frequently cited are (1) the length of the marriage, (2) the needs of the parties, (3) the needs of the children, (4) the earning power of the parties, (5) the source of the property, (6) where the contributions toward property acquisitions came from, and (7) the cause of the divorce, including fault in the breakdown of the marriage.
For long-term same-sex couples, this can present a problem, since the quintessential issue is whether the property is a separate property or a marital property. This is usually determined by the date of marriage. If the determination of marital property commences solely on the “date of marriage,” this could present a dilemma for a party in a long-term committed relationship with a short-term marriage date.
Some contentious issues that arise are:
- How to split a retirement account that was earned over the course of a 20-year relationship that only included a one-year marriage?
- How to divide real property that is only in one party’s name but which both parties contributed to the property?
- How to divide personal property that is in one person’s name?
- How is alimony considered in a short-term “marriage” but a long-term committed relationship?
- How is alimony considered when there is a disparity of income and education?
- How should the court best assess spousal contributions within the relationship?
- Was there a prior civil union, domestic partnership, or marriage that could nullify this marriage or affect marital assets of the parties?
- How to decide which assets count as marital property?
- How to value one’s spouse’s contributions to the other spouse’s career success?
- Was the relationship akin to a conventional marriage and if so how were economic, non-economic and financial decisions made?
DECIDING WHICH ASSETS COUNT AS MARITAL
Deciding which assets count as marital property and how to value one spouse’s contributions to the other spouse’s career success is often a tricky endeavor. However, a practitioner can characterize enhanced earning capacity as marital property and count indirect spousal contributions toward the growth in value of business or property assets.
Key in the equitable distribution dilemma, is exploring the following:
- The nature of the partnership (prior to the actual marriage date as well as the marriage date). For long-term cohabitating couples but short-term “marital” partners, practitioners need to determine when the economic partnership began.
- Both economic and non-economic contributions by non-earning spouses.
- How the spouses bargained with each other.
- How diverse roles were valued in marital bargains.
- How parties assign and perform gender or stereotypical gender roles within marriage.
- Spousal contributions that benefitted the couple rather than the individual.
Failure to view the assets in these terms may mean that there could be a failure to capture the nature of marital partnership and properly compensate contributions made by non-earning spouses. Another issue, made salient by same-sex “hybrid” cases in which the spouses have been long-term cohabiting partners but short-term marital partners, is how to determine when an economic partnership begins. There may be tax implications of distribution of assets as well.
Addressing these issues is critical to the reformation of marriage because property rules impact how spouses bargain with one another, how diverse roles get valued in marital bargains, and how we assign and perform gender within marriage. Proper compensation for spousal contributions rewards individuals for making choices that benefit the couple rather than the individual, which is normatively positive behavior.
THE ROAD FORWARD ON DIVORCE EQUALITY
Prenups – Same-sex couples may need prenups or post nups to ensure that their entire relationships, not just the relationship post June 26, 2015 or their post-marriage date will be considered by the courts for estate planning, divorce, tax and other legal reasons.
When couples marry without a prenup, the courts may not recognize the true duration of their relationship or the property they acquired before they were officially married. It might be difficult to reach an equitable result in a divorce without recognizing the entire duration of the relationship as well as understanding the interplay of how these individuals acquired and maintained the real and personal property they both possessed as a couple.
When seeking legal advice, it is imperative that you provide the attorney with as much information regarding your situation so that she or he can provide you with sound legal advice that meets your needs and provides you with options to make choices for yourself.