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.
What if you did not previously legally adopt your child?
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 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.
Factors in Determining Parentage for Non-Legal Same-Sex Parents
To determine if a non-legal parent has formed a parent relationship, a judge will consider a variety of factors. These range 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 (joint decision making, sharing of expenses, etc).
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.
Key Take Aways for Parents in Same Sex Relationships Going Through Divorce
- The official marriage date trumps the actual length of the relationship.
- Property division and alimony are determined based on the length of the marriage regardless of relationship length.
- Child custody is more complicated for same sex partners, especially when one has not legally adopted the children of a biological parent.
- North Carolina courts can award custody to a non-legal parent under specific circumstances (abuse on the part of the biological parent, allowing a co-parenting relationship to form, etc).
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.
Child custody especially is one of the most emotionally charged issues in divorce for transgender or non-binary individuals. The good news is that North Carolina law is clear: under N.C. Gen. Stat. § 50-13.2, child custody decisions are based on the best interests of the child.
A parent’s gender identity is not a legal basis for denying custody or visitation. Courts are not permitted to make custody decisions on the basis of a parent’s transgender status alone. What courts consider is much more concrete:
- Each parent’s ability to provide a stable, loving home
- The child’s relationship with each parent
- Each parent’s willingness to support the child’s relationship with the other parent
- The child’s adjustment to home, school, and community
- Any history of domestic violence or substance abuse
Can My Spouse Use My Transgender Status Against Me in Custody?
Unfortunately, some parties attempt to use a parent’s gender identity to influence custody proceedings. They incorrectly argue that a child’s exposure to a transitioning parent is somehow harmful. North Carolina courts should (and historically do) reject arguments that are based solely on a parent’s gender identity rather than on demonstrated harm to the child.
That said, custody litigation can be unpredictable, and judicial attitudes vary. If you are a transgender parent worried about custody, it is critical to work with an experienced family law attorney who understands both NC custody law and the specific challenges transgender parents can face.
Parenting Plans and Pronouns
A well-drafted parenting plan can address practical matters for communications with the child. This can include how a child’s questions about a parent’s transition will be handled and agreements about stability and consistency in the child’s daily life. These provisions can reduce conflict and give both parents and children more certainty.
Practical Tips for Transgender Individuals Going Through Divorce in NC
- Hire an attorney who is experienced with both NC family law and LGBTQ+ legal issues. This combination matters.
- Gather all legal documents that reflect your current name and gender marker, or be prepared to explain any inconsistencies.
- Document your parenting involvement thoroughly if custody is contested.
- Be aware that some aspects of federal gender marker policy were in active flux in 2025; consult with an attorney before relying on any assumption about document status.
How Rosen Law Firm Can Help
Rosen Law Firm has been helping families across the Triangle navigate divorce and family law matters for decades. Our attorneys understand that every divorce is different, not just for families with gay or trans parents. Despite this, there are unique legal and personal challenges they experience that must be acknowledged and tackled head on.
We serve families throughout Wake County, Durham County, Chatham, Johnston, and Orange County.
Whether your concerns involve property division, custody, name changes, or just understanding your rights, we are here to help. Contact us or call us at (919) 787-6668.
Lisa has practiced law since 1987 but has also been heavily involved in legal education and writing. As a teacher at Central Carolina Community College, she has been nominated twice for Instructor of the Year. She has taught paralegal and criminal justice courses, authored legal study guides and articles for national publications, edited numerous legal studies textbooks, and consulted with legal authors on several writing and educational projects. She is also a Board member and Committee Chair for the North Carolina State Bar Board of Paralegal Certification.
