June is Pride month. As we look back on the long road to the legal recognition of LGBTQIA+ marriage, we can see how the process created potential problems for LGBTQIA+ couples when they divorce.
We wanted to raise awareness about these potential pitfalls so that you can protect yourself with a pre- or postnuptial agreement or skilled negotiation in divorce. Make sure your divorce attorney understands the unique challenges of LGBTQIA+ divorce and how to best protect your interests.
Determining the Start Date of Marriage
Although LGBTQIA+ marriage was not legally recognized in New Mexico until 2013, many LGBTQIA+ couples in New Mexico took vows and joined their lives in a commitment ceremony long before then. These ceremonies were not legally binding, but an argument can be made that they should be considered the legal or equitable start date for marriage for purposes related to divorce.
The start date of an LGBTQIA+ marriage also becomes questionable in situations where
partners married in a state which recognized their union and then moved to a state that did not, or when a couple formalized a domestic partnership and then later married.
Establishing the date of marriage is important for any couple in New Mexico because it is a community property state and the community begins when the marriage starts. A longer marriage creates more marital community property to be split between each partner. The date of the marriage also affects other issues such as spousal support.
Division of Property and Debts
In divorce, all of a couple’s assets and debts have to be characterized as either community property or separate property. The determining factor is usually whether the property or debt was acquired before or after the start of the marriage or if it was acquired by gift or inheritance.
Couples may create their own plan for dividing their assets and liabilities or they may develop an agreement through mediation or a Collaborative process. If parties are unable to reach an agreement, then their divorce will be processed through the court system. To make sure you receive your fair share of assets or do not take on too much of your partner’s debts, ensure that your attorney has the right information to protect your interests when it comes to dividing property and debts. Be prepared with evidence to establish whether the property is community or separate.
Custody, Adoption, and Child Support
Other complex issues that affect many LGBTQIA+ in divorce involve children they are raising together. If one partner is not biologically related to the child and has not formally adopted the child, that partner could have problems acquiring parental rights. On the other side of the coin, if only one partner has parental rights but will need financial support from the other, that partner may have difficulty getting court-ordered child support without a legal connection. Make sure your divorce attorney addresses these critical issues.
In New Mexico, spousal support is based on a variety of factors including the need for support and the ability to pay support. In addition, the length of the marriage, the parties’ ages, their health, and other factors affect the determination of spousal support. The longer a marriage lasts, the more likely it is that one partner will have to pay spousal support to the other. That means disputes about the marriage date will affect the amount of spousal support you pay or receive.
Talk to Attorneys Who Understand LGBTQIA+ Divorce Issues
Advice and assistance from an experienced divorce team can make all the difference when it comes to dealing with this traumatic time in your life. At Batley Family Law, we understand how to handle the complex issues that arise in LGBTQIA+ divorce and we can also help protect your interests in advance with a marital agreement. Call our Albuquerque office today at (505) 246-0500 or fill out this contact form to take the next step toward scheduling your confidential case evaluation.