Back in 2015, the Supreme Court ruled that all states needed to recognize same-sex marriages and allow same-sex couples to marry within state borders. At the time, all but 13 states had already legalized same-sex marriages, and this final step represented a major milestone for the LGBTQ community.
Despite their differences, same-sex couples share many similarities with heterosexual couples, most notably that the relationships do not always last forever. Even though gay marriage is now legal in all 50 states, the complications of the past still have major implications for same-sex couples who wish to divorce. Any divorce is complicated, but same-sex divorces come with their own additional set of complications.
In the sections that follow, we'll delve deeper into the unique aspects that make same-sex divorce so challenging, but first, an overview of divorce considerations for all couples.
Standard Divorce Considerations
Whether you are married to someone of the opposite sex or someone of your own gender, the two of you will have a lot to negotiate if you decide to divorce. Dissolving your union is not as simple as just deciding you no longer want to be married.
For starters, you'll need to divide up your assets, including any cash, savings, investments, real estate and other valuable property. Depending on where you live, your state may require you to divide everything you have equally, or you may only have to divide up the assets you obtained while you were married. Of course, you and your former spouse are free to negotiate the terms of the division, but the court will decide for you if you are unable to come to a suitable resolution on your own.
If the two of you had any children together or adopted children during the marriage, you'll need to determine custody arrangements. For example, the children could live with one parent during the week and the other on weekends, or one parent could maintain custody, with the other being allowed to visit at specified times. Again, the two of you can try to work out the details on your own, but the court will decide if you can't reach an agreement.
If one member of your duo did not work during the marriage or worked for far less pay than the other, the high-earning spouse may be required to pay alimony to the other to help maintain a similar lifestyle after the divorce. The court will likely determine the amount that needs to be paid.
If children were involved in the divorce, the parent who maintains primary custody may be able to collect child support payments from the other parent to help cover the costs of caring for the child. The specific amount will depend on a variety of factors, including the income of both parents and the ages of the children.
No two couples, whether heterosexual or same-sex, are exactly alike, and you and your partner will likely have other issues to negotiate besides the ones described here, but these are some of the most common. Next, we'll break down the additional complications same-sex couples face in each of these primary areas.
As explained in the previous section, each state has provisions for dividing assets in a divorce, whether in an equal split or only splitting assets from the duration of the marriage. This makes things a bit more difficult for same-sex couples.
Massachusetts first legalized gay marriage in 2004, and many more states followed in the ensuing years. However, many couples were still unable to marry in their home states, choosing to enter into domestic partnerships or civil unions instead. Some couples stayed with these arrangements, while others chose to marry at a later date when same-sex marriage was more widely recognized.
What makes things challenging in divorce is that many same-sex couples who married in 2015 had already been living as married couples, even though they weren't legally married, for many years or even decades prior to getting legally married. In states that only require division of marriage assets, that only accounts for the most recent years, even though the couple had been in a committed relationship for far longer.
Because the legal framework for same-sex marriage was only introduced recently, the courts don't really have any guidelines for how to deal with same-sex couples who have only been married for a short period of time but living as such for an extended period. It is up to the court's discretion in these cases, and the results can vary widely, making this aspect of same-sex divorce quite unpredictable.
If one spouse was the primary breadwinner for the couple during the marriage, the other may be eligible to collect alimony payments. The duration of the marriage plays a key role in determining the amount of any alimony payments. However, as explained above, the duration of the marriage does not necessarily represent the full length of the relationship, as same-sex couples were unable to marry during that time.
Alimony payments will be markedly smaller for a 2-year marriage than for a 20-year union, with income levels being equal. If you lived as married for far longer than you were legally married, you'll have to fight hard to get the payments you deserve. The argument in your favor is that the two of you likely would have been married for much longer, had same-sex marriage been legal at the time.
Adding children into the mix creates an additional layer of complication in every divorce, but even more so for same-sex divorces. Because same-sex couples physically can't have children the old-fashioned way, many resort to in-vitro fertilization, surrogacy or adoption to grow their families.
However, before gay marriage became widely accepted, many adoption agencies refused to allow same-sex couple to adopt. In these cases, one member of the couple could adopt the child. Though the other partner acted as a parent, possibly for the child's entire life, they would not have any legal parental rights, as the other parent's name was the only one on the adoption documents.
Although adoption is much easier for same-sex couples today than it was in the past, couples still run into complications with other methods of building families. With in-vitro fertilization and surrogacy, the child only carries DNA from one biological parent, leaving the other parent again with no legal parental rights.
Because there is no legal framework for the non-biological or non-adoptive parent, it can be difficult for them to fight for custody of the children they consider to be their own. Even if they have been in the child's life since day one and the child sees them as a parent, the court will typically still award custody of the children to the person who is a parent in the legal sense.
If you are in a scenario like this, you can always try to negotiate custody arrangements with your spouse. If your split is amicable, you may have a chance at retaining some form of legal custody. If your divorce has become contentious, on the other hand, you'll need an experienced attorney to advocate on your behalf to have your best chance at a favorable result.
Establishing Child Support
Because of the complications described above, it can be incredibly challenging to assign child support payments in same-sex divorce cases. For example, let's say two women were married, and one of them carried and delivered their child, fertilized via sperm donor. In this couple, the woman who did not carry the child was the primary breadwinner.
In a divorce, custody would likely go to the woman who was the child's biological mother. However, because she did not work during the marriage, she needs financial assistance to care for the child. In a heterosexual divorce, the father would pay child support. In this case, though, the other spouse is not a legal parent and therefore would not be legally required to pay child support.
This is what makes child support in same-sex divorce cases so complex. How should child support and custody be decided to ensure the child's best interests are addressed? This is a legal gray area that requires skilled attorneys to negotiate, though the decision is ultimately up to the judge in the case.
Adding to the list of complications in same-sex divorces is the fact that many same-sex couples entered into civil unions or domestic partnerships before ultimately getting married when it became legally recognized. Both civil unions and domestic partnerships are legal arrangements that must be dissolved in their own rights, in addition to the divorce. This adds an extra layer of complication to the overall process, as each relationship must be dealt with separately.
Preparing Your Case
If you are on the unfortunate side of a same-sex divorce, finding that you have minimal legal rights to your children or assets, you need the expertise of a family law attorney who is well-versed in the complications of same-sex divorce. A skilled attorney will know how to present your case in court to give you your best chance at a favorable result.
If you would prefer to handle your case out of court, divorce mediation is another option you have available to you. Same-sex couples in particular can benefit from mediation, as it keeps both parties on a more level playing field. In mediation, the two of you will work through the details of your split in an attempt to come to an arrangement that satisfies both of you. You'll work with a single attorney, rather than having individual representation, and that attorney will help the two of you reach a compromise.
In mediation, you won't be bound by the legal requirements for parenthood and custody, so you can be more flexible in coming to an agreement. Although mediation is handled out of court, you'll still both be legally bound by the end results once your divorce is finalized, and you'll both save a lot of money on legal costs in the process.
Not every couple is a candidate for mediation, though. If your breakup has turned bitter, you may have difficulty agreeing on anything in the mediation process. In cases like this, you'll likely need to bring your case before a judge to decide.
Choosing Your Attorney
In divorce cases, it is important to work with an attorney you feel like you can trust. You'll be spending a lot of time together over the duration of your case, and you'll have to talk about a lot of sensitive topics, including your finances, any possible infidelities, your sex life and other intimate details of your relationship. If you don't feel comfortable discussing these topics with your attorney, you should likely seek different representation.
Here at San Diego Family Law Attorney, we have a lot of experience in handling divorce cases for both heterosexual and same-sex couples. California was the first state to allow domestic partnerships between members of the same sex back in 1999. It was also one of the earliest states to formally legalize gay marriage in 2008, following Massachusetts in 2004.
Because we have been steeped in same-sex cases for more than a decade, we have the experience in this area to handle your same-sex divorce case. We understand how difficult divorce can be, especially if there are children involved, so we will always approach your case in a caring and compassionate manner.
We'll do everything in our power to help you maintain your current lifestyle as much as possible. Of course, we cannot make any guarantees with regards to the outcome of your case, we can promise you that we will work hard on your behalf to get you the best possible results.
It all starts with an initial consultation with one of our same-sex divorce attorneys. We'll walk you through the divorce process and review the details of your case so that we can begin to develop a plan of action. We'll take the time to answer any questions you have about divorce, our law firm or the legal process in general. We want you to have everything you need to make an informed decision about working with us. Call us today at 619-610-7425 to set up an appointment for your initial consultation.