Gay Marriage Post-Obergefell

Now that the Supreme Court has upheld several circuit court decisions permitting gay marriage, same sex couples can breathe freely knowing their marriage rights in North Carolina cannot be revoked. The legal protections accompanying this landmark ruling are vast. One set of rights many may not have yet considered relates to our state’s family law statutes.

A number of same-sex couples have lived together for many years, never expecting the state to sanction their unions. During those years when legal marriage was not an option, many had commitment services or took vows in another state only to have their rights remain unrecognized by North Carolina law. Even in the wake of the Windsor decision, decided by the U.S. Supreme Court in 2013 (the case mandating federal recognition of gay and lesbian marriages), state law still trumped with respect to property and financial rights following dissolution of a same-sex relationship. When one of these long-term partnerships ended, the law did little to provide the protections straight couples enjoyed—most notably in the areas of equitable distribution and spousal support rights.

For gay couples in our state, regardless the length of the relationship or the vows taken in another venue, splitting up carried none of the ramifications or protections associated with the dissolution of legal, heterosexual marriages. If, for example, a gay couple (or an unmarried straight couple, for that matter) were to have split after any number of years, dividing up the property would have been markedly more straightforward, if unjust. The basic rule of “title prevails” was the maxim governing gay couples deciding to split their assets when going their separate ways. If a gay couple lived together in a residence titled in the name of one party, irrespective of how much the other party might have contributed to the mortgage, the property remained solely that of the party holding title. Similarly, a stay-at-home partner living off his well-to-do boyfriend would have had no recourse (beyond groveling) when it came to post-break-up financial support. In essence, the lot of the gay couple pre-Obergefell was, in many ways, governed by a might-makes-right form of public policy. The legal framework simply did not exist to offer protection to gay couples, especially those with uneven bargaining power. All that’s changed now.

Today, if things go south, no longer does one partner have to rely on the good graces of the other or on the unforgiving letter inscribed on the deed to the couple’s house. The policy undergirding our state’s family law statutes and case law finally provides a safety net for same-sex spouses deciding to part ways.

Charlotte Divorce Lawyer and Family Law Attorney