Same-Sex Divorce: The Obstacles Involved, and How to Surmount Them

In 2015, the landmark decision in Ogerbefell vs. Hodges made same-sex marriage legal in all fifty states, including thirteen in which it had been banned prior. The decision allowed same-sex couples to receive the same benefits as heterosexual couples, including tax exemptions, healthcare, and all of the other protections afforded those who are married.

Since that time, marriage has been a far simpler process, but same-sex divorce continues to lag behind. Though same-sex couples now can legally divorce, they continue to face challenges along the way.

Dissolution of Two Unions

For many currently in same-sex marriages, they are actually in two separate legal relationships with their spouse. Prior to the legalization of same-sex marriage, many couples entered into domestic partnerships, which is a legal relationship established between those who live together. 

Now, when same-sex couples are filing for divorce, many are finding they actually have two legal relationships to dissolve. Though this complicates the proceedings a bit, family law attorneys can help move through the process in a more efficient way.

Payment of Alimony

Since same-sex marriage was legalized only six years ago, many partners spent years, even decades, living together prior to marriage. This makes alimony a more complex process, especially in front of a judge who is not familiar with all of the specific couple’s circumstances. 

In some states, divorcing couples may be awarded “palimony”, or financial support for partners who are not married, depending on how long the couple spent sharing a residence. For those couples who have been together for many years prior to marriage, those relationships potentially carry more weight in court. However, there are no guarantees as to how assets will be divided and if alimony will be granted.

Child Custody and Legal Parental Rights

One of the potentially most heart-wrenching aspects of same-sex divorce is blurred lines over each parent’s rights to visitation of their children. 

If a couple decided to adopt or start a family before legal marriage, a parent might find themselves without legal parental rights to those children. In addition, if a child has been adopted or born to one parent, that parent is the one who maintains the legal rights. Unless the couple has established parental rights legally, one parent could risk losing custody.

When a same-sex couple enters divorce proceedings, both parties should strongly consider mediation. The mediation process allows for more control and collaboration, as well as an awareness of all the subtleties of a same-sex divorce. Counsel from a family law attorney can help same-sex partners navigate this potentially frustrating process and make it a more seamless one.

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