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Property Division and same sex Divorce


In any divorce, a judge reviews the division of marital assets. Judges do not differentiate between heterosexual or same sex marriages for this process. However, if a same sex couple lived together before same sex marriage became legal in all 50 states and Washington, D.C. in 2016, the judge's review of marital debts and assets may be unfair to one of the parties. If you're considering divorcing your same sex partner, it's essential to secure legal representation to secure your financial future.

Division of Property Purchased Before Marriage

In some states, the court awards property to the person who purchased it before same sex marriage was legal. In other places, judges consider whether or not the couple had a domestic partnership, for how long, and how the couple paid for the property. States often leave the division of such assets to the judge's discretion. If you secured a prenuptial agreement regarding those assets, the judge will be required to follow it.

Property Division for Marital Assets

Property purchased after a couple is legally married is considered to be a marital asset. In nearly all locations, marital assets are equally divided between the two individuals who are getting divorced. The judge may consider the dollar value or market value of the property. In some cases, the couple may have to sell the property and split the proceeds. The judge may also allocate assets without requiring their sale. For example, if a couple owns a home, the judge may require them to get three independent appraisals. If the property appraises for $500,000, the judge may allow one party to keep the home. The other party would receive an equivalent value in other property or assets, such as cash, jewelry, stocks, retirement investments, or vehicles.

Retirement Funds and Investments

Property division of retirement funds and investments gets tricky in a divorce. There's no guarantee that an investment will increase in value. Most judges will look at the fund's current value at the time of the divorce negotiations. In some cases, retirement accounts established before the marriage will still be considered a marital asset, even if the account holder did not contribute any additional funds to it during the marriage.

Spousal Support

If one party receives less than 50% of marital property, the judge may order spousal support. Spousal support works the same way for same sex and heterosexual divorces.

The division of property and debt during a divorce is often a contentious process. You can protect your short-term and long-term financial situation by choosing a divorce attorney with experience negotiating fair settlements for property division.

Contact our divorce attorneys at Gille Kaye Law Group, PC today to learn more about divorce and the division of property when a same sex couple splits.

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