The Paper Chase
Same-Sex Divorce: Everything You Need to Know
Are you looking into same-sex divorce? The world of relationships is a complex tapestry, with each thread representing a unique journey of love, growth, and sometimes, dissolution. When the relationship is same-sex marriage, the complexity can often increase, especially when it comes to divorce.
Understanding same-sex marriage laws is not just necessary for those involved, but also for their friends, family, and legal professionals navigating these waters alongside them.
The landscape of same-sex divorce is still evolving, heavily influenced by the changing societal and legal understanding of same-sex marriage. Unlike traditional heterosexual divorces, which have a long history of legal precedent, same-sex divorces are often tasked with carving a new path in family law.
In the U.S., the landmark Supreme Court ruling in 2015 on Obergefell v. Hodges legalized same-sex marriage nationwide, causing a significant shift in the legal landscape. Prior to this ruling, the laws governing same-sex marriage, and consequently, same-sex divorce, varied wildly across states. However, despite the federal recognition of same-sex marriages, the realities of same-sex divorce can still be incredibly complex.
Before the legal right to marry
Much of this complexity stems from the length of a couple’s relationship before marriage. Due to the belated legalization of same-sex marriage, many couples have been together for years, sometimes decades, before they had the legal right to marry. These pre-marriage years can complicate the divorce process significantly.
In a traditional divorce, courts consider the length of the marriage when dividing assets and deciding on spousal support. However, for a same-sex couple who has been together for twenty years but only legally married for five, this measurement may not accurately reflect the reality of their shared life and financial entanglement.
They may have bought property together, raised children, and intertwined their lives in ways that are not easily unravelled by the standard legal process.
Child custody is another area where same-sex divorce can get complicated. In many states, legal parentage is automatically granted to both members of a heterosexual couple when a child is born into their marriage. However, for same-sex couples, the non-biological parent often has to adopt the child to secure legal rights. If this step was overlooked, the non-biological parent may face significant challenges in securing custody or visitation rights during a divorce.
Then there is the matter of ‘divorce tourism’. Prior to the nationwide legalization of same-sex marriage in the U.S., some couples travelled to states where it was legal to tie the knot. But when those relationships dissolve, and the couple lives in a state that didn’t recognize their marriage, the road to divorce can be fraught with legal hurdles.
Fortunately, progress is being made. Many states have begun acknowledging the unique circumstances surrounding same-sex divorces, with courts starting to consider pre-marital cohabitation when dividing assets and making custody decisions. Lawyers are becoming more knowledgeable in this area of law, offering more informed guidance to their clients. Even so, it’s vital for anyone going through a same-sex divorce to find legal representation who is well-versed in this evolving area of law.
Divorce is about real people, not just the law
The emotional toll of divorce, coupled with these added layers of complexity, can make same-sex divorce a challenging process. But, with proper support and understanding, individuals can navigate these challenges effectively.
There’s an undeniable need for ongoing conversation, education, and empathy around this topic, for individuals and society as a whole.
Remember, it’s not just about laws and legalities; it’s about real people, real relationships, and the delicate task of untangling lives that have been woven together over time.
Here are five crucial things you need to know about same-sex divorce.
Jurisdiction plays a vital role in any divorce proceeding. If a same-sex couple marries in a state or country where same-sex marriage is legal but then moves to another area where it is not recognized, they could face issues when trying to divorce. In cases where the jurisdiction doesn’t recognize the marriage, it may also not acknowledge the divorce. That’s why it’s essential to consult with a family law attorney who is knowledgeable about the nuances of same-sex divorce laws in your specific area.
Parental Rights Can Be Complicated
Parental rights and custody disputes can become complex in a same-sex divorce, particularly when one parent is the biological parent, and the other is not. For example, a non-biological mother may face difficulties asserting her parental rights over her children, especially in regions where the law is still catching up with societal shifts.
It’s therefore paramount to establish legal parenthood early in the relationship, ideally at the time of the child’s birth or adoption, to avoid potential complications during the divorce process.
Property Division Can Get Tricky
Jova Xu from Jovi Realty says that the division of assets and debts is a critical part of any divorce proceeding. In same-sex divorces, this process can sometimes get tricky, particularly for long-term relationships that began before the legalization of same-sex marriage.
Courts often consider the length of the marriage when dividing property, which could mean that assets acquired before the legal marriage might not be subject to equitable distribution. Couples should therefore document their financial agreements and intentions throughout the relationship to avoid any confusion or disputes.
Alimony and Spousal Support
Determining spousal support or alimony can be another challenging aspect of same-sex divorce. As with property division, the duration of a legal marriage often plays a role in determining alimony, potentially disadvantaging same-sex couples who could not legally marry at the start of their relationship. This highlights the importance of prenuptial or postnuptial agreements in setting the terms for potential future spousal support.
Lastly, but perhaps most importantly, never underestimate the emotional toll that divorce can take on you. It’s vital to seek out a supportive community to help you through this difficult time. Reach out to friends and family, consider joining a support group, or seek counselling. Your emotional health should be your top priority as you navigate this challenging process.
Same-sex divorce, like any divorce, involves a complex interplay of emotions and legal intricacies. Awareness of the unique challenges that same-sex couples may face during a divorce can help ensure a fair and equitable resolution.
It’s crucial to consult with a knowledgeable attorney who can guide you through the complexities of the process and protect your rights and interests. At the same time, emotional support is an essential part of coping with the changes and challenges that divorce inevitably brings.
About the Author
Alistair Vigier is the CEO of ClearWayLaw.com, an online legal marketplace that helps people find a lawyer and leave reviews for lawyers. There are over 100,000 lawyers on the website. When not working, Alistair enjoys writing for multiple media including Canadian Lawyer, Vancouver Sun, Business in Vancouver, Daily Hive, and BC Business.