Same-Sex Divorce: Everything You Need to Know

Divorce, Family Law, Lawyer in McHenry County

In 2015, a monumental decision was made by the US Supreme Court, making same-sex marriage legal. To millions of Americans, this decision was life-changing, as they can now marry the person of their dreams with the backings of the law.

Before this ruling, about 13 states in the US still banned same-sex marriage. Due to this drawback, intending same-sex couples have to travel to a state where same-sex is legalized and get married.

But it came with a problem since their state never recognized them as couples, divorce becomes much more complicated.

Same-sex Divorce Complications

Suppose you and your spouse don’t have multiple registrations for partnership and civil union, or perhaps you both started living together before marriage equality became a thing. In that case, this leads to complications in divorce.

Each state has its own rule, but having a residence makes you eligible to file for divorce in your state, and both spouses are required to stay six months before such action can be taken. It is essential to understand your state laws before you decide regarding divorce as a same-sex couple.

The Basis

Every state in the US offers a ‘no-fault’ divorce, in which both spouses don’t need to have a reason for the divorce other than they no longer want to be married.

Aside from that, some state also offers a ‘fault base’ divorce, in which you can use the misconduct of your spouse to seek divorce.

Irrespective of which process you choose, a judge will divide the marital properties, decide issues regarding child support, and spousal support if necessary.

Custody And Child Support

When a same-sex marriage ends badly, one of the couples involved might use discriminatory parentage laws against the other. But if you can sit down and work out a workable parenting plan with your spouse, it will make the divorce process go smoothly without issues.

Most couples started a family before marriage equality, and without a legally recognized marriage, it becomes difficult for the other parent to adopt spouses, biological children. In a case where the other partner never legally adopted any of the children, the court, in most cases, doesn’t award parental rights, not even visitation.

Since marriage equality is pretty new, it is hard to speculate how courts in every jurisdiction will handle the case. If a child is born in a heterosexual marriage, the court presumes that the husband is the father.

Spousal Support

Alimony or spousal support is complicated for same-sex marriage, mostly if the couple has lived together before being legally married.

Ideally, most judges often award alimony if there is the ability to pay and a financial need. However, discretion is implored, among many other things. The longer the marriage, the more likely it is that the judge will award alimony.

The best thing both same-sex couples can do is hire an experienced and reliable attorney who knows a great deal about same-sex marriage and divorce. Through their professional advice and guidance, you’re less likely to make a mistake that might harm you.

Contact Franks & Rechenberg. P.C. Attorneys at Law to help with your case.