Same Sex Divorce – Navigating Alimony, Child Custody, and More

Same Sex Divorce – Navigating Alimony, Child Custody, and More

In 2015, the United States Supreme Court ruled that every state must allow same-sex couples to be legally married. That decision in the Obergefell vs. Hodges case granted marriage equality to couples who’d historically had to settle for civil unions and domestic partnerships.

The right to marry also comes with the right to divorce. Same-sex couples get divorced at about the same rate as straight couples and are subject to the same laws and benefits. Unfortunately, the laws weren’t usually written with LGBTQ+ couples in mind, and this presents some challenges.

In this article, we’ll outline the major legal aspects of same-sex divorce and how they affect same-sex couples and their families. We’ll also explain the importance of working with an LGBTQ divorce lawyer to ensure the fairest division of property and custody arrangement.

Contact a Washington State Family Law Attorney

Arrange A Consultation call us at 888-211-7814

Property division and same-sex couples

Generally, property is considered either marital or separate. Assets and debts acquired during the marriage are split fairly between the spouses, while those from before marriage stay with one person or the other.

However, same-sex couples may have property they acquired together during a civil union or domestic partnership before they were able to legally marry. Depending on the state and specific judge, the courts might consider the fact that the couple didn’t always have the option to own the property together and split the value.

The potential complications of property division for same-sex couples are significant enough that they would be wise to have a prenuptial, postnuptial or cohabitation agreement in place for the fairest division of property. Working with an LGBTQ divorce lawyer is the best way to make certain you have the proper documents in place.

Understanding same-sex alimony

Also called spousal support or maintenance, alimony is often granted in same-sex divorce.

Like with heterosexual divorces, the courts consider the length of the marriage and how finances were arranged when determining the agreement. The longer the marriage, the more likely one spouse will be awarded alimony (if the other has the ability to pay).

For same-sex couples, the relationship might be far older than the marriage. Say a couple lived together for 15 years before they could legally marry, with one of them bringing in most of the income while the other raised kids or went to school.

The judge, who has leeway to determine the alimony arrangement, may add some or all of those 15 years to the length of the marriage when deciding whether to award alimony.

Some states allow “palimony,” which is financial support for long-term but unmarried partners. Still, despite the state allowing it, the judge could still decide to only award alimony based on the length of a legal marriage.

If you’re worried about securing the spousal support you need to maintain your livelihood, talk to an experienced same-sex divorce attorney about how to present your case to the courts.

Child custody laws for same-sex couples

Each state has its own version of “marital presumption” laws. These generally indicate that children born to, or adopted by, a married couple are legally assumed to be the children of both parents.

Of course, the laws around parenting have historically been written with heterosexual couples in mind. For same-sex couples, it’s not possible for both spouses to biologically parent children together.

Common ways LGBTQ+ couples become parents are:

• Adoption
• One spouse’s genetic material with donor egg or sperm
• One spouse’s fertilized egg implanted in the other spouse’s uterus

Just being married is not enough to ensure both parents have full legal rights in the case of divorce. While a biological parent should have little trouble securing custody, their former spouse might not automatically have that right.

While some states apply marital presumption to same-sex couples, others demand that the non-biological parent adopt the child or be a legal step or second parent.

Without this step, their right to custody may not be protected in a same-sex divorce, even if their name is on the birth certificate. They also might not be ordered to pay child support.

Courts generally want to make a child custody ruling that is in the best interest of the child. Much of the time that means a relationship with both parents. To make this the most likely outcome, same-sex couples should ensure each spouse has a legal claim as the parent, either via biology or adoption.

Your children’s wellbeing is of the utmost importance. The right child custody attorney will always prioritize their safety and privacy.

Other unique challenges of same-sex divorce

Same-sex couples deal with a range of challenges that straight couples don’t, no matter what the status of their relationship. If they decide to get divorced, the challenges become very specific, making a difficult transition even harder.

Undissolved Unions It’s common for married, same-sex couples to have shared a civil union or domestic partnership before getting legally married, as those were the extent of options for legalizing their relationship.

Some localities automatically terminate civil unions and domestic partnerships when a couple gets married. Often, however, couples need to initiate the process. Dissolving a civil union or domestic partnership with a city, county, or employer tends to be easier than ending one with the state.

Social Stigma Despite the fact that same-sex marriage is legal for the entire country, many LGBTQ+ couples continue to face social stigma through media, organizations, or the courts. Not only might they feel like an afterthought in a world centering on heterosexual marriage – they may feel they’ve let the wider LGBTQ+ community down for ending such a hard-won relationship.

Beyond that, couples seeking same-sex divorce encounter laws written for straight couples, judges operating on prejudice and legal professionals who don’t understand how to represent their family.

Same-sex couples deserve the same service and respect afforded to divorcing heterosexual couples. Fortunately, LGBTQ divorce lawyers make a point of understanding the unique obstacles LGBTQ+ people face and are ready to advise them throughout the same-sex divorce process.

Contact Envision Family Law for LGBTQ divorce lawyers

If you’re a member of the LGBTQ+ community and thinking of getting divorced, speak to an attorney sooner rather than later.

Even if you haven’t discussed the idea with your spouse yet, an understanding of the laws and how they work for same-sex divorce will help you know how to best begin this often difficult process.

An experienced LGBTQ divorce lawyer knows not only state laws but also how they apply for couples whose relationship hasn’t always been considered legally binding. At Envision Family Law, we are deeply committed to supporting same-sex couples and their families with knowledge, compassion and respect.

To set up your initial consultation, call or text (888) 211-7814 today, or use the simple contact form on our website. It will be our honor to serve you!