How Same-Sex Divorces are Impacted by the 2014 Legalization.
June is Pride Month – an annual remembrance of the 1969 Stonewall riots and how LGBTQIA+ communities have contributed to each other’s culture, community, and enhanced legal rights. Stonewall occurred nearly 60 years ago, but same-sex marriage was not legalized until 2014 – only 12 years ago. How does that impact same-sex couples in their divorces? We’ll work backwards to explore the answer to this question.
Divorce. Same-sex divorces are treated the same as heterosexual divorces – the same laws related to parenting, child support, and dividing assets apply to all married couples. But, if same-sex couples could not be legally married until 2014, what happens to community assets acquired before that date? It depends on whether you had a registered domestic partnership or were in a committed intimate relationship.
State-Registered Domestic Partnerships. In Washington, State-Registered Domestic Partnerships (“SRDPs”) were created in 2007. On July 23, 2007, the first business day after the law went into effect, more than 100 couples registered their partnerships.
Washington law treats SRDPs like marriages and the language of statutes related to dissolving SRDPs mirror those that apply to divorces. That means, the community’s assets will be divided according to the same standards.
Committed Intimate Relationships. Many same-sex couples have been in marriage-like relationships for longer than these related laws have been in effect. So, when those couples go to divorce, how does the Court treat the community assets? They must prove a “Committed Intimate Relationship” (“CIR”) was in place before they registered their partnership (before 2007) or they married (before 2014).
A CIR is a stable, marital-like relationship where both parties cohabit (live together) with knowledge that a lawful marriage between them does not exist. The court looks at these factors to determine whether a CIR exists: 1) Continuous cohabitation, 2) Duration of the relationship, 3) Purpose of the relationship, 4) Pooling of resources and services for joint projects, and 5) Intent of the parties.
When a CIR is established, the Court will divide the parties’ assets by applying the same legal standards as those applied in SRDPs or divorces. That means any property acquired during the relationship is presumed to be community property and subject to division.
So What?
Because SRDPs and same-sex marriages were not legally recognized until 2007 and 2014, respectively, same-sex couples are more likely to have a CIR claim than heterosexual couples, who could legally marry before 2014. CIR claims may be more difficult to prove, as the Court has discretion in applying these factors. Whereas, in a SRDP or marriage, the Court looks to the parties’ legal certificate to determine the “date of marriage.”
Additionally, establishing a CIR does not allow the Court to consider a request for spousal support if they never registered or married. Put another way, only where a couple registered or married can one party request spousal support from the other. So, while a CIR is “marriage-like,” the Court does not consider them a legal marriage.
When a Court evaluates the need for spousal support, one of the factors assessed is the length of the partnership or marriage. Long-term partnerships or marriages are typically found when the parties have been in them for 25+ years. When a court finds a long-term marriage, spousal support is used to “equalize the parties’ standard of living and post-dissolution economic status,” rather than using it solely as a “tool to provide for bare necessities.”
Conclusion.
We know that many of these couples have considered themselves married to each other since before 2007. As with many laws, there is a disconnect between the intent and the impact. This is just one example.
July 2032 will be the first time same-sex couples that registered their domestic partnership will be legally considered “long-term” partnerships. 2039 is the first year that same-sex couples who happily celebrated their legal right to marry in 2014 will be legally considered “long-term” marriages. That will be the first time that a Court will apply the long-term aspect to the request for spousal support amongst same-sex couples. So, while we’ve come a long way, there is still a long way to go.
Regardless of how you identify, you should always consider how a CIR claim can impact your property division in a dissolution, even if it will not impact a request for spousal support.
If you have additional questions or to request a consultation, please contact Beresford Booth at info@beresfordlaw.com or by phone at (425) 776-4100.