Basics of same-sex divorces

On Behalf of | Feb 21, 2019 | Divorce

The U.S. Supreme Court struck down legal restrictions to same-sex marriages in 2015. But these marriages are not immune to the possibility of divorce that impacts other marriages. Same-sex couples planning for divorce also face unique problems.

Before the Court invalidated the Defense of Marriage Act which restricted same-sex marriages, these couples lived in different types of relationships such as domestic partnerships. This often depended on the state where they lived. There have been approximately 491,000 same-sex marriages in this country.

Many of these relationships were converted to marriage after the legalization of same-sex marriage. If a partnership or other relationship was not automatically converted to marriage, couples may have to undergo a second process to dissolve their partnership.

Spousal support also depends on the couple’s relationship status before their marriage was recognized. Courts usually consider length of the marriage when setting the amount of support. This may be complicated and inequitable, however, because laws do not adequately address the time that a couple was together for setting alimony.

Courts may not recognize their first union that was illegal in another state or their domestic partnership. A spouse who lived together with their partner for decades may receive credit only for the period after 2015 when the Court recognized same-sex marriage.

Absence of laws may also complicate because couples do not receive recognition for the time they were together before their marriage was recognized. Couples should consider taking part in mediation and alternative dispute resolution to reach fair and equitable resolution to spousal support and property division.

It is also important that legal adoptions take place for the non-biological parent if the child was born before a legal marriage. This helps prevent the risk that the non-custodial parent loses custodial rights.

An attorney can help overcome these legal obstacles. They can present options that help assure that there is a fair and reasonable decree following negotiations or litigation.