After a hard-fought battle for equal marriage rights, some same-sex couples find that it is more difficult to get divorced than it was for them to get married. LGBT couples face several unique challenges when getting a divorce. Hiring an experienced divorce lawyer is one way to navigate the problems of ending a same-sex marriage.
What Issues Do LGBT Couples Face When They Divorce?
Divorce can be difficult for any couple. There are numerous emotional and financial issues that complicate the proceeding. What’s more, the divorce can be costly, time-consuming, and bitter.
Same-sex couples face the same issues as many heterosexual couples. However, same-sex couples face a few challenges that heterosexual couples do not face.
Parental Rights
Most states recognize a married couple as the legal parents of any minor children born during the marriage. However, the same is not true for LGBT marriages.
In many cases, LGBT couples will adopt a child. However, only one partner might be the legal parent for the adoption. Alternatively, one partner might be the child’s biological parent, making them the legal parent for the child.
The non-biological parent or the parent that is not on the adoption forms has no legal right to the child. This issue can create problems with custody, visitation, parental rights, and child support payments. For example, the legal parent could refuse to share custody or allow visitation, while the non-custodial parent could refuse to pay child support.
Dissolving One or Two Marriages
Some states decided to dissolve domestic partnerships and require same-sex couples to get married to obtain the rights of married couples. Other states left domestic partnerships as they were before the Supreme Court ruling.
Therefore, some couples may be married and have domestic partners. In that case, state laws could require the couple to end both unions to be legally divorced.
What Was the Marriage Date?
Another problem faced by LGBT couples is determining the date when they were married. For example, a same-sex couple could have been together for two or more decades after a private marriage ceremony. However, they may not have been legally married until after 2015. Therefore, when did they get married?
The marriage date can determine whether a spouse is entitled to alimony or spousal support. It can also factor into property division, especially in states that have community property laws.
Some courts might add time to the marriage date if the couple considered themselves to be married before same-sex marriage was legalized. However, that is not the case in all courts.
Therefore, a spouse who cared for the home or placed their career and education on hold for the other spouse could lose out. A lower-earning spouse could receive no spousal support if the judge does not credit time to the marriage.
Divorce Mediation May Be the Best Option for LGBT Couples
Mediation offers same-sex couples a private, flexible option for settling the terms of their divorce. With the help of a mediator, the partners can negotiate a fair settlement for spousal support, property division, and child support. They can also develop a parenting plan that is in the best interest of their child.
However, courts retain jurisdiction over minor children in a divorce. The judge reviews all parental agreements to ensure that the terms of the agreement are in the best interest of the child. As discussed above, if state law does not recognize a partner as the child’s legal parent, the agreement regarding custody, visitation, and support would be unenforceable in court.
In some cases, a judge may refuse to incorporate the terms of the settlement agreement regarding the child in the final divorce decree. Therefore, the couple may reach a settlement between themselves, but it still might not be legal.
The court may incorporate the terms related to property division and alimony into the final order if the terms do not violate state law.
It is strongly recommended that LGBT couples seeking a divorce consult with a family law attorney about issues related to their children. There could be options for allowing a non-biological partner to adopt the child or give the non-biological parent legal guardianship of the child.
Divorce Laws Have Not Caught Up with Legalized Same-Sex Marriage Laws
Divorce laws were enacted based on heterosexual couples. Unfortunately, many LGBT couples who divorce find that their expectations for ending their marriage do not align with the current divorce laws in their state.
Furthermore, without amendments to the divorce laws addressing unique issues faced by LGBT couples, judges will likely continue to rule differently based on the jurisdiction and the court’s preferences.
Contact an experienced family lawyer if you need help with an same-sex divorce.
