In 2015, the Supreme Court made the landmark decision to mandate that same-sex marriages were legal in the United States of America. From this decision, married LGBT couples were entitled to the same benefits that heterosexual couples have, such as Social Security benefits, tax exemption status, insurance benefits, and the right to make medical decisions or be present in the hospital for a spouse.
Suddenly, couples that had been barred from being wed legally were flocking to courthouses across the country to say “I do” to their partners. It was and remains a joyous and important part of our nation’s history, and we celebrate it and other LGBT community triumphs every year in June during Pride Month.
Because so many people feared the decision would be reversed, many of them wed without waiting as long as they would have normally to see if they would be a good long-term fit with their partner. Unfortunately, whether gay or straight, not all marriages are destined to last “until death do us part.” In the wake of the Supreme Court’s decision, many legal questions have arisen regarding divorce in LGBT marriages. Here is what you need to know if you and your partner are looking to divorce, especially if there are children and custody to consider.
Basic Divorce Law
As LGBT persons are entitled to the same rights as heterosexual couples when it comes to marriage, their divorces function in much the same way. Just as in heterosexual marriages, partners wishing to file for divorce must have resided in the state they are filing for at least six (6) months. Contacting an attorney is wise for any couple wishing to procure a divorce. There are other stipulations as well, and a licensed attorney, such as the professionals at Stange Law Firm, are best suited to guide you through the process for your state.
Property Division
Since many LGBT spouses were wed/together before the 2015 ruling, it makes the division of property and assets a little more complex. When in the process of a divorce, the judge will separate assets and debts acquired. If a couple was married before the 2015 legalization of gay marriage, a less-than-favorable or unfair settlement might result. Until the system is better equipped to handle generalized claims to property in relation to the Supreme Court ruling, it is primarily up to the judge’s discretion. While the division of property and assets might vary from state to state and based upon a state’s “community property” laws, a lawyer on your side is crucial to navigating the minutiae of the system.
Child Support and Custody
Because tensions run high in any divorce, there are likely to be intense disagreements or fights over child custody; this is especially true for LGBT couples seeking to divorce. As children of an LGBT couple are either adopted or are the biological child of one or the other of the partners, the biological parent of the child(ren) might employ the same discriminatory practices and laws that hurt the LGBT community and children for many years. Because many LGBT couples adopted children under one parent long before marriage in their community was legalized, it might be near-impossible to obtain adoption of the child after the marriage is dissolved. The reason behind this thinking is that if a partner was never legally considered a child’s parent, many courts in the country would not allow custody or visitation in any form. This is also the case with partners where the child is biologically linked to only one parent. This is heartbreaking for the spouse who might have been fundamentally involved in raising the child(ren) but was never considered a legal parent. This is also devastating to the child(ren) involved in the divorce. The divorce of their parents in and of itself is traumatic. With the added prospect of not seeing one of their parents ever again, the trauma compounds significantly.
For this reason, it is crucial that you and your former partner try to resolve your issues outside of court to avoid a nasty legal battle, which could be detrimental to the child(ren) in the case. Creating a co-parenting plan or schedule or having the non-biological spouse legally adopt the child(ren) might help alleviate the disagreements that could arise during a custody hearing.
The only case in which we at Stange Law Firm do not encourage a peaceful resolution between both parties is when there is domestic abuse of a spouse or child(ren) involved; in this case, the divorce takes on a much different air and needs a different approach.
Alimony and Spousal Support
This is another situation where settlement issues are incredibly complex. Again, because many LGBT couples were together before 2015 in what many would consider a marriage accepting the certificate, the calculation of alimony or spousal support is tricky. A judge will try to allocate alimony fairly but, without an attorney present to represent your interests, it will be difficult to impart the nuance needed to successfully state your case in court.
Mediation
As with child custody, it is always preferable to try to mediate or come to an agreement outside of court before engaging in a lengthy and emotionally draining battle with a spouse over property and children. To avoid the turmoil and stress, a lawyer might encourage mediation and can act upon your behalf to still argue your interests and come to a compromise with your former spouse or their lawyer.
Empathy and Vigorous Legal Defense
At Stange Law Firm, we support every person’s right to love whom they choose and, as heterosexual couples do, wed whom they choose. We also understand that not every relationship is perfect, and some end in divorce, even LGBT ones. For this reason, we do not discriminate based upon any characteristics such as age, race, gender identification, sexual orientation, creed, or religion.
We understand the systems of law in place in the wake of the historic 2015 ruling and are ready to defend your interests in court or out. Please contact us today so we can get started on your divorce or child custody settlement.
