Length of same-sex relationship before and after marriage

My same-sex spouse and I have been together 36 years; however, we were unable to marry in NC until June 25, 2015, when the Supreme Court released the Obergefell decision. Because my spouse was in the uniformed services, we actually had a wedding ceremony on February 19, 2013, in Washington, DC.

After that and after being berated unmercifully for neglecting to do so, I put his name on my share of family land in eastern NC. At one point in the marriage I was earning significantly more than he did. We lived together while he earned as B.S. in a science field at State, a master’s in education at State, and a BSN and NP at UNC, but we were not married during that time. We purchased several houses together. in 1997 or so we purchased one house together while I encouraged him–in order to establish in improve his credit rating–to buy another house, which I would then pay for as rent for my office space. We were not married then either. So I paid half of one house and then for all of another via rent.

In 1995 or '96, he took a job in VA and I had to decide whether to let my business in Raleigh die or let the relationship die. He told me that he had trusted me all those years and now it was time to trust him. So I decided to just do it. We sold the house in Raleigh and I moved to VA. Because of the type of work I was in, I couldn’t re-establish myself in VA, so for the 12 (or maybe 15?) years we were there, I did not work. He paid the bills and made the mortgage payments. When I received an inheritance from my father, I finished paying the mortgage and a car loan. That was about two years before we were married in DC.

My spouse did well in DC. He received several promotions and is now retired with an income of over $100k a year. I am receiving only Social Security. My spouse pays the bills. I do have a retirement account but have not drawn on it except for about $30k to buy some high-end appliances for the new house we built. My spouse doesn’t want us to have to pay taxes on money from my retirement fund, so I’m not yet drawing on it. I’m getting extra income from renting my childhood home, and my spouse bought another house to use as a rental and enjoys that income. Except for property taxes and the normal recurring expenses, we have no debt.

I’ve said all that because I’d like to get someone’s gut reaction as to how a judge might likely divide our properties in an equitable distribution action.

  • Would the judge favor my spouse because he has paid the bills since about 1995?
  • Would the time we spent or the things we did together before the Obergefell decision play any role at all in a judge’s thinking?
  • By law, we’ve only been married either 8 years since the DC wedding or 6 years since the Obergefell decision. How might that affect an equitable distribution decision?
  • Assuming most male judges are prejudiced against us, how likely will he be able to make a decision without that prejudice factoring in?

The fact that our marriage might now be falling apart is a great concern of mine, and, if it comes to pass that we do separate, how all these things might factor in a ED decision is also a great concern of mine. What can you tell me?

I’ve answered your questions in the same order in which you asked them:

(1) No, equitable distribution is divided equally assuming equal is equitable. Most of the time, equal is equitable. If equal is not equitable, then the marital property will be divided in a percentage that is equitable. It is irrelevant in an equitable distribution case who paid the majority of the bills or who was the primary income earner during the marriage.

(2) That evidence can be presented, but unfortunately, for equitable distribution purposes in NC, the marital property did not begin to be acquired until there was a valid and legally recognizable marriage.

(3) The exact date of a valid marriage will affect equitable distribution because it will effect when marital property could have been acquired and will affect the classification of marital vs. separate property. Marital property is property acquired after the date of marriage and before the date of separation excluding inheritances. Separate property is property acquired before the date of marriage or after the date of separation and also includes inheritances acquired at any time assuming no co-mingling with marital property or marital funds. So values of the marital property could be affected depending on the exact valid date of marriage.

(4) NC Judges handle many same sex divorces and simply apply the facts to the law as they would in any other equitable distribution case. Judges cannot be prejudiced. If a judge feels he or she cannot fairly preside over a case, then he or she will be required to recuse themselves from the case pursuant to judicial ethical rules.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.

Thanks. So in the eyes of NC courts were we married in February 2013 in DC, as our marriage certificate shows, or in 2015, when the Supreme Court issued the Obergefell decision?

NC would likely recognize the marriage as being valid in October 2014 when a federal court ruling (4th circuit) held that laws prohibiting same sex marriages are unconstitutional.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.

And thanks again. These things are good to know. I dread the thought of declaring and effecting a separation and all the complexities and discomfort involved, but if things keep going as they are it may be unavoidable, at least for me.