Gay and Transgender Divorce: A Guide for LGBT Couples in NC

The right to same-sex marriage – and divorce

In 2014, same-sex couples in North Carolina won the right to marry in the case of General Synod of the United Church of Christ v. Cooper. The landmark decision in Obergefell just one year later solidified the right of same-sex couples and transgender individuals to get married in all 50 states. While the marriage equality movement emphasized the historic victory that was same-sex marriage, the reality is that same-sex couples face the same marital challenges and stressors as opposite-sex couples, and with the passing of gay marriage comes the right to gay divorce.

Divorce can be a time of emotional pain, stress, and uncertainty for anyone, but there are additional challenges that solely affect same-sex couples and transgender individuals which further complicate the process. There are unique challenges for same-sex couples regarding property distribution, spousal support, child custody and child support that opposite-sex couples do not experience during divorce proceedings and transgender and non-binary individuals may also be unfairly treated in custody disputes. We have outlined these distinctions in detail below to help you navigate the already tumultuous divorce process without added stress or confusion.

The “official” length of the marriage

 The right to same-sex marriage is still relatively new in North Carolina, yet many couples have cohabited and functioned in marriage-like relationships for far longer than they have been in a legal union on paper. However, North Carolina does not recognize common law marriage, meaning a family court in North Carolina considers only the date of a legal marriage, regardless of how long a couple lived together beforehand.

This is important because North Carolina is an equitable distribution state, meaning marital property is divided equitably in a divorce between same-sex spouses, just as with an opposite-sex couple. However, there are complications for same-sex couples because marital property only includes property acquired since the date the spouses were legally married. For example, let’s say you and your same-sex partner of twenty years married as soon as you could in 2014, but the home, car, and furniture were all purchased by your spouse alone during your cohabitation but before your marriage. According to the law, this property would be considered separate property, meaning it will not be equitably split and you might be left at a disadvantage.

It is important to note that certain assets purchased prior to the date of marriage may be titled jointly and other avenues in the law may need to be utilized to separate that property if the matter cannot be resolved in the context of the divorce.  For instance, say your house is titled in both names prior to marriage. In this case, you would possibly have to pursue a petition to partition. This certainly may produce unfair results for couples who are not able to resolve their divorce amicably.

The legal start date of your marriage also presents issues when determining alimony. Typically, the longer the marriage, the more likely the lower-earning spouse will receive support. With same-sex marriages, the years prior to the marriage do not count towards the judge’s determination of spousal support. While you may have depended on your same-sex spouse for two decades, the length of time that the judge considers might only be the last four years.

Issues that may arise with child custody and child support

One of the hardest parts of divorce is settling disputes over how children will be cared for. As a parent, you will want to remain a part of your child’s life in any way that you can, but if you are not a legal parent you may not have any rights to assure you receive custody or visitation. The status of legal parent can be a bit uncertain in same-sex relationships but according to the law, you are a legal parent if you are the child’s biological parent or have legally adopted the child. In North Carolina, adopting your partner’s child can only happen when the partners are married. Alternatively, neither spouse may be a biological parent but can still become legal parents through adopting a child together.

If same-sex couples are both legal parents, they both have equal rights to pursue custody. However, if only one parent is the child’s legal parent, the process for child custody is much more complicated. Generally, if you are not a child’s legal parent, you do not have any legal rights, including the right to seek physical or legal custody, seek visitation, or financially support the child. However, you may be able to remain involved in your child’s life through a parenting agreement, or by judicial means if the court determines a legal parent has allowed you to form a parent-child relationship regardless of your legal status.

Issues with child custody often arise in marriages between two women where one partner is the biological parent, making her a legal parent automatically, but the other partner does not take any action to become a legal parent. In the event of a divorce, the non-biological parent has no legal rights regarding the child. The best way to avoid such a troubling situation is through adoption. However, if you did not adopt the child and are now going through a divorce, it may be possible for you and the other parent to work out an agreement.

Ultimately, in the event that you did not adopt your child and your ex is non-cooperative, there may still be a way of obtaining parental rights in a child custody dispute through a court order. While a legal parent’s right to authority over their child is constitutionally protected, there are conditions that may allow for a non-legal parent to obtain custody rights by way of judicial order. A court can order custody to a third party or non-legal parent where it is shown that the legal or biological parent either

  • has neglected the child;
  • is generally unfit as a parent; or
  • has acted inconsistently with their constitutional right as legal parent.

Acting inconsistently with their constitutional right as a legal parent has been interpreted to include situations in which the legal parent has knowingly maintained a relationship with a non-legal parent, allowing a parent-child relationship to exist between the non-legal parent and child. For example, if your ex is the sole legal parent but you have co-parented your children together for the full length of their lives, you may have a way of receiving custody rights.

In determining if the legal parent has permitted a non-legal parent to form a parent relationship, a judge will consider a variety of factors ranging from the presence of the non-legal parent at the birth, to the intent of the biological parent, nature of the relationship to the child, and how the parties held themselves out to others. The judge will also consider how the household was run, including the nature of joint decision making, or sharing of expenses.

These factors were outlined in the 2008 case of Heatzig v. MacLean, and expanded in 2017 with the case of Moriggia v. Catselo. If you are in the position of a non-legal parent, any actions that would suggest your co-parent allowed a parent-child relationship to exist between you and your child will help establish your rights in a custody dispute.

Additional concerns for transgender and non-binary individuals

              The decision to transition often comes with many challenges and judgment. Unfortunately, these disadvantages plague the area of divorce law as well. The above-mentioned child custody complications may prove even more problematic for transgender or non-binary individuals. This is because a former spouse or possibly a judge might try to use a parent’s gender identity or transition as a basis for limiting or even denying custody or visitation, arguing that the parent’s gender identity will adversely affect a child’s well-being.

While there is no case law on this subject in North Carolina, courts in Nevada and Kentucky have completely terminated a parent’s relationship on the basis of gender identity. On the other hand, a Colorado court concluded that there was no evidence that a transgender or non-binary parent’s home was an environment that would endanger the child’s emotional or physical development. Because this area of the law is still underdeveloped, it is best for transgender parents to obtain legal parent status and participate fully in the lives of their children to avoid problems or discrimination should custody become an issue in a divorce.


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