LGBTQ+ Separation, Dissolution/Divorce

Now that same-sex marriages are available and recognized in North Carolina, same-sex couples are also able to utilize North Carolina separation and divorce statutes to assist them with dissolution of their marital union.  While "divorce" itself is the definitive line between being married and no longer being married, there are many other issues related to a divorce that should be addressed.  These include division of property and support rights, in addition to many other rights and obligations which can be lost if not properly preserved. At Haas & Associates, P.A., our experience with handling various disputes related to the break up of heterosexual married couples can be a valuable resource, especially when combined with our experience with same-sex couples and the application of marriage law to same-sex couples. See our "Family Law" section for more information, and call us for more information regarding your specific situation.

Same-sex couples who are not married, but still desire to dissolve their relationship, will be subject to the North Carolina laws that were not designed to be used in domestic contexts, and often result in clumsy and inappropriate outcomes. That is why it is extremely important for same-sex partners to draft a partnership agreement that sets out each party's right and obligations both during the relationship, and in the event that the relationship dissolves. Often, these agreements can make all the difference in how your relationship rights will be handled, in the event of a future dispute.  At Haas & Associates, P.A., our experience with handling various disputes related to the break up of same-sex couples, especially when a partnership agreement has not yet been drafted or executed, can be a valuable resource. Call us for more information regarding your specific situation and to discuss partnership agreements.

Partnership agreements are particularly important for couples where:

• Real estate is owned jointly
• There is a great income disparity between partners
• A majority of the couple's assets and/or debts are titled solely in one partner's name
• One partner stays at home due to illness, disability, or to raise children
• The couple is in a long-term relationship
• The couple is not married in any state or country, and/or does not intend to marry

Here are some facts to consider regarding the dangers to unmarried same-sex couples:

• Unmarried same-sex couples cannot ask a court to equitably divide their jointly owned property.  Instead, they may be subject to filing a "Petition to Partition" in which the court will divide the property based on each party's "contribution." This could mean that in a case where one partner arbitrarily wrote all of the mortgage checks from his account and the other partner arbitrarily wrote checks for other household and living expenses from his account, the court could find that the partner who happened to write the mortgage checks made 100% of the "contribution" to the property, and is therefore entitled to all of it.  Partnership agreements can give guidance and control for how to handle jointly owned property in a fair and appropriate manner, and how to respectfully divide joint property without the aid of a court.

Contact us at 919-783-9669 today to discover how we can help you with partnership agreement samples.

• All income earned during a marriage (regardless of who earned it or where it is deposited) is considered marital under NC law, which means that one spouse can compel a marital share of the other spouse's retirement accounts (even if they are in the sole name of the other spouse) if the income earned during the marriage was deposited there.  To the contrary, there is currently no available way for one partner to compel a share of the other partner's retirement accounts upon separation.  This often means that if one partner was a stay-at-home partner or parent while the other partner earned income that was then deposited into his/her retirement or other sole accounts, the stay-at-home partner/parent may be denied a share of those accounts despite his/her contributions to the household and to the earning potential of the other partner. In addition, even if the couple agrees to split up their retirement accounts, it may be impossible to transfer any portion of certain retirement accounts to your same-sex partner tax-free.  Partnership agreements can give guidance and control for how to handle asset division, as well as tax and retirement planning. In addition, even if the couple agrees to split up their retirement accounts, it may be impossible to transfer any portion of certain retirement accounts to your same-sex partner tax-free.

• Alimony is not available to unmarried same-sex partners in North Carolina.  Without an agreement to the contrary, one partners cannot compel his/her ex-partner to pay for his/her support/maintenance. Partnership agreements can provide for post-separation support, if appropriate, and can set out the conditions and time-frame that support will be paid (* see an attorney and tax professional for advice regarding the implications of paying/receiving post-separation support from a same sex ex-partner).

• There are very few ways to compel a same-sex partner to vacate the shared residence, and "landlord/tenant" law may be applied (inappropriately) as the only available means to compel eviction. Same-sex partners should decide, in advance, who will move out, under what conditions, and in what time-frame if the relationship were to end.  These agreements should be contained in a partnership agreement.

• For unmarried same-sex couples, there is no recognized "marital share" in "personal property" like furniture, electronics, and pets.  These items should be discussed in a partnership agreement.  Ask a family law attorney to explain how partnership agreements can be used to more easily facilitate property distribution, in the event of a breakup.

Consult with an attorney at Haas & Associates, P.A. to learn more about the types of partnership agreements and possible ramifications of, and options concerning, your current or anticipated same-sex marriage and/or "divorce" (separation).