Spousal Support, Maintenance & Alimony in a Same Sex Divorce

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Spousal Support, Maintenance & Alimony in a Same Sex Divorce

Many same-sex couples ask us to explain how same sex spousal alimony works in New Jersey. They want to know whether the rules about how much same sex spousal maintenance might be and how long same sex divorce spousal support might be paid are the same as for heterosexual couples.

Spousal support, maintenance & alimony in a same sex divorce.

 

In New Jersey, to determine your rights to same sex spousal alimony, we first need to know the nature of your same sex relationship. Under the New Jersey Domestic Partnership Act, certain couples are granted certain rights such as the right to make health care decisions, be on the partner’s health insurance plan, and receive tax exemptions. But only the following persons qualify for a domestic partnership: 

 

  1. same-sex and opposite-sex couples who have reached the age of 62,
  2. couples younger than that who entered a domestic partnership before the law was revised in February 2007,
  3. and couples who have entered a domestic partnership or relationship status with similar rights and obligations outside of New Jersey.

 

If you are in a domestic partnership, there is no legal right to same sex divorce alimony, spousal support or maintenance.

 

A New Jersey civil union automatically includes you in the myriad legal rights and responsibilities under state law conferred on a married couple. In the words of the civil union legislation, a New Jersey civil union grants “all of the same benefits, protections and responsibilities under the law, whether they derive from statute, administrative or court rule, public policy, common law or any other source of civil law, as are granted to spouses in a marriage.” This includes rights to family leave benefits, rights relating to joint ownership of property, rights relating to insurance, health and pension benefits, rights relating to state public assistance benefits, and rights to spousal support, maintenance and alimony.

 

If you are a married couple, the same sex divorce spousal support, maintenance and alimony laws apply to you just as they would with a heterosexual couple. In New Jersey, a court can award a same sex couple different types of alimony including open durational alimony, rehabilitative alimony, limited duration alimony or reimbursement alimony. In making an award of same sex couple sposual alimony or support, the court has to consider the following factors:

 

(1)The actual need and ability of the parties to pay alimony;

(2)The duration of the same sex marriage or civil union;

(3)The age, physical and emotional health of the parties;

(4)The standard of living established in the same sex marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living, with neither party having a greater entitlement to that standard of living than the other;

(5)The earning capacities, educational levels, vocational skills, and employability of the parties;

(6)The length of absence from the job market of the party seeking same sex spousal support, maintenance or alimony;

(7)The parental responsibilities for the children of the same sex marriage or civil union;

(8)The time and expense necessary to acquire sufficient education or training to enable the party seeking spousal support, maintenance or alimony to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;

(9)The history of the financial or non-financial contributions to the same sex marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;

(10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;

(11) The income available to either party through investment of any assets held by that party;

(12) The tax treatment and consequences to both parties of any spousal support, maintenance or alimony award, including the designation of all or a portion of the payment as a non-taxable payment;

(13) The nature, amount, and length of temporary support paid during the divorce litigation, if any; and

(14) Any other factors which the court may deem relevant.

 

Given these 14 statutory factors requiring consideration when seeking same sex divorce spousal support, maintenance or alimony, it is vitally important to speak with an experienced family law attorney to achieve the best possible outcome for you and your family. Call us today for a consultation to understand your rights in same sex divorce alimony

Erin D. DeGeorge
Erin D. DeGeorge joined DeTorres & DeGeorge, LLC as partner to the firm in June of 2010. Prior to joining DeTorres & DeGeorge, Erin was associated with the national firm of Fox Rothschild LLP and Cutler, Simeone, Townsend, Tomaio & Newmark, LLC...
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