Your Rights in a Same-Sex Divorce in North Carolina

Since 2015, it has been legal in every state for LGBTQ+ individuals to marry. Gay and lesbian couples, however, often face unique issues and concerns that opposite-sex couples do not. These concerns can make the divorce process more challenging, especially when it comes to child custody and support.

At Epperson Law Group, we believe that when you have the right information, you can make better choices about how to proceed with a divorce. Today, we want to talk about your rights during a same-sex divorce in North Carolina, and answer some of the more common questions our attorneys are asked.

Can same-sex couples get divorced in North Carolina?

Same-sex couples may get divorced in NC as long as they fulfill all of the legal requirements for divorce.

Residency requirements

1. The couple has been separated and living apart for at least one year.
2. One or both spouses has been a resident of NC for at least 6 months.

Paperwork requirements

All couples seeking absolute divorce must file a lawsuit to obtain that divorce; only one of the parties must file that lawsuit, but it must be properly served on the other. An absolute divorce claim seeks only to make the parties single; it does not resolve other claims. We recommend you let your attorney handle this to ensure the divorce is done correctly, and to make sure you properly preserve your other rights (such as support and property rights) prior to divorce.

Do same-sex divorces require grounds?

No. North Carolina is a no-fault state when it comes to divorce, and there are only two grounds for divorce under the laws:

1. Separation for one year; or
2. Incurable insanity.

The “incurable insanity” ground is rarely used and can be complicated. You can learn more about it here.

Must same-sex couples have a separation agreement?

No, but getting one is strongly recommended for any divorcing couple. Separation agreements outline the important elements of a divorce, including division and distribution of assets and debts, spousal support payments, child support, and child custody/visitation. Not having such an agreement usually causes problems later.

What rights do LGBTQ+ parents have when it comes to child custody?

Of all the concerns of LGBTQ parents seeking a divorce, this is the area most likely to create challenges. Under the law, a legal parent must:

• Be biologically related to the child, or
• Have legally adopted the child.

In other words, if you are a non-biological parent, you must adopt that child to obtain the identical rights of the child’s biological parent. However, if you have not adopted that child, you may still seek custody or visitation of that child if you have an “established relationship in the nature of a parent-child relationship.” This is common in LGBTQ marriages and the means by which custody rights may be obtained.

This area of the law is confusing and continues to evolve, so consult your attorney on the best way to proceed when seeking custodial rights to a non-biological child.

A quick note about surrogacy

Gay and lesbian couples who use surrogates to carry children to birth should legally adopt those children, too. If the egg or sperm was donated by one parent, that parent should be listed on the birth certificate – but the other parent may not be, which can create challenges later, especially if the surrogate decides to purse custody herself. In general, North Carolina does not recognize surrogacy agreements as terminating a surrogate’s or a sperm donor’s rights, so consult your attorney on the proper way to proceed.

What rights do LGBTQ+ parents have to child support?

If both parents are the legal parents of the children, then one parent may be eligible to receive (or pay) child support. Child support is calculated using a number of factors listed in the North Carolina Child Support Guidelines, though some exceptions may apply for parents with significant assets and income. We can help you through this process.

If the non-biological parent did not adopt the child or grant rights of custody, then the courts may deny child support to the biological parent.

How are assets divided in a gay or lesbian divorce?

Asset division can be tricky for any divorcing couple, because the Court may only divide marital or divisible property. In North Carolina, there are three types of property:

1. Separate, which may include assets and debts you owned or obtained before marriage or after separation;
2. Marital, which may include the assets and debts accumulated during your marriage; and
3. Divisible, which may include assets and debts accrued between the date you separate and the date your divorce is finalized, particularly additional value caused rising markets.

There are many exceptions to these definitions, and it may be difficult to correctly determine if an asset or debt is marital, separate, or a combination of the two. The assistance of an attorney is usually needed when dealing with these issues.

What rights to same-sex couples have regarding spousal support?

The rights are the same regardless of gender. If a spouse is substantially financially dependent on the other or has a substantial financial need the other spouse has an ability to fill, then there is likely to be an award of spousal support. Unlike child support, there is no calculator for spousal support in North Carolina. Unless the parties agree on duration and amount, a Court will generally analyze the parties’ reasonable financial needs to determine this issue.

One way to determine alimony is to handle the issue prior to marriage with a premarital agreement. It is also possible to address the alimony after marriage by agreement. Courts generally accept all elements of pre- and post-marital agreements unless there is egregious fault with the documents (such as fraud by a party, or proof of signing under duress).

If you are seeking a divorce and have questions about the process, Epperson Law Group, PLLC is here to help. Our Charlotte same-sex divorce lawyers address your concerns, and help you navigate the challenges that could arise. To reserve a consultation with one of our lawyers in Charlotte, Boone, Concord, or Weddington, please call 704-321-0031 or fill out our contact form.