Potential Property Division Complications for Same Sex Divorces

The impact of Connecticut law on same-sex spouses when it comes to property division in divorces can be confusing.

Read on to learn more.

Background on Same-Sex Divorce & Marriage Equality

The legalization of marriage between partners of the same sex in Connecticut was a hard-fought battle. Decisions recognizing marriage equality in Connecticut in 2008, and then nationally in 2015, were celebrated across the United States. That said, Connecticut’s years of denying marriage results in some complexities. Many same-sex spouses still face a variety of issues that aren’t a reality in heterosexual marriages, and the same extends to divorce.

Comparison Between Same-Sex and Opposite-Sex Property Division

From a legal standpoint, divorces between spouses of the same sex share many similarities with divorces between spouses of the opposite sex. Unfortunately, this isn’t always a good thing. To date, laws have not evolved to account for some of the unique challenges faced by same-sex couples. As a result, it’s possible that a court might miss the mark when trying to resolve matters like property division in a same-sex divorce.

Length of the Marriage and Same-Sex Spouses

Where do the problems begin? For one, the length of the marriage is an important factor in property division and alimony awards and calculations. While same-sex marriage was legalized nationally in 2015, many couples have been together for much longer. For example, let’s say a couple has been together for 30 years, and they married immediately at the end of 2008. If they divorced in 2021, the courts may treat them as if they were married 13 years—even though they’ve been sharing property and assets, raising children, and making important mutual decisions together for much longer.

In scenarios like this one, Connecticut law may not take the couple’s entire relationship into account, which can impact property division decisions. That said, it’s possible Connecticut courts would consider a more liberal definition of the length of the marriage for these same-sex couples.

Cohabitation Prior to Marriage

In the event that premarital cohabitation could be considered for the length of the marriage, it makes sense to look to whether and when the couple would have married had they been able to do so.  For example, did the couple have a commitment ceremony?  Or, whether and when did they name each other as their executor, power of attorney, or healthcare proxy?

More than One Date of Marriage

Another issue in same-sex divorces is that a couple may have more than one date of marriage.

For example, Vermont legalized same-sex civil unions in 2001, before marriage was available in any state. Then, in 2004 Massachusetts became the first state to marry gay and lesbian couples.  Some Connecticut spouses have both a Vermont civil union and a Massachusetts marriage — both of which Connecticut law recognizes.  Generally speaking, the earlier marriage date is the one to use for the “length of the marriage” start date for alimony and property division.

Potential Advantages of ADR

Mediation and collaborative divorce both allow spouses to reach agreements outside of the courtroom. Resolutions reached by same-sex spouses may be more creative and reflective of their family structure and long term partnership than a judges’ decisions. Of course, litigation may still be the preferred option for some couples.

The Comprehensive Connecticut Property Division Guide

How to divide property is one of the most important issues in divorces. And, it’s one of the most confusing. There are no set formulas or rules on how property will be divided. The good news is that creates tremendous flexibility for experienced divorce attorneys to craft an individualized approach. In order to prepare to make solid and informed decisions, you need to understand how property division works. Our Comprehensive Connecticut Property Division Guide tells you everything you need to know about property division in Connecticut.

Next Steps

To start making a plan for your divorce, reach out. Our first step at Freed Marcroft, the Goals & Planning Conference, is designed to get to the heart of your problem and unveil your true goals. We analyze those goals, plus the facts of your case, and present you with recommendations and options to move forward.