Almost no divorce is easy. There are legal and emotional challenges for spouses, their families, and their children. However, same-sex couples getting a divorce face unique legal issues throughout the process. 2015 made same-sex marriage legal in the country, but certain aspects of state and federal legislation have not caught up or properly addressed the differences in LGBTQ+ marriages and divorces.
Basic Divorce Filing Requirements
Same-sex couples who want a divorce must follow the same residency and filing requirements as opposite-sex couples. Residency requirements depend on the state. In Nebraska, one spouse must be a resident of the state for one year prior to filing for divorce. In Missouri, the spouse filing for divorce must have been a resident of the state for 90 days prior to filing. If you move somewhere that does not recognize same-sex marriage, you cannot get a divorce.
LGBTQ+ couples also must provide grounds for divorce, just like opposite-sex couples. Most Midwest states have no-fault divorce grounds, meaning you don’t have to name a reason for the divorce other than irreconcilable differences. Some states allow both fault-based and no-fault divorces.
During a divorce, spouses or the court divide marital property between parties. Most Midwest states follow equitable distribution laws. This means that if the court divides marital property, they will split property fairly between parties based on certain factors.
Many LGBTQ+ marriages were made legal and official in 2015. Property division can be complex when the couple was married or acted as a married couple before being legally married. The court considers any property gained prior to marriage to be separate property and not up for division. This may not be appropriate for how some same-sex relationships managed their financial state prior to marriage.
An alternate dispute resolution (ADR) may be preferable for many same-sex couples so that the division of property is not up to the whim of the court. However, this isn’t realistic for every couple. You want to have an attorney who understands these issues advocating for your interests.
Alimony or Spousal Support
Alimony, spousal maintenance, or spousal support payments may also be affected by the length of the marriage. A court may only award support based on a couple’s date of marriage. For a same-sex couple, this may not reflect when they first began cohabitating and acting as a married couple.
Child Custody, Visitation, and Support
Any divorce has the potential to become contentious. Divorces that include children can end up even more emotionally charged. In an LGBTQ+ divorce, child custody and support determinations can be more complex. In many cases, a child is the biological child of only one of the parents. Children can also be conceived through egg donors, sperm donors, surrogacy, artificial insemination, and other methods.
If the other spouse didn’t obtain parental rights to the child, many courts do not recognize the spouse’s parental rights to custody or support during a divorce. The court may also place more weight on the rights of the biological parent, even if both spouses have legal parental rights. This is an incredibly unfair situation for many parents.
Many states have paternity presumption laws. This means that when a couple is married, any child born to that couple is assumed to be their legal and biological child. Although most marital rights extend to same-sex couples the same way they extend to opposite-sex couples, presumed paternity does not always apply to LGBTQ+ couples. Some states extend those rights to the wives of a birth mother, but not all.
In many cases, these complications are made easier if a couple can settle their issues outside of court through a separation agreement. Unfortunately, any divorce can become contentious, and a biological parent may take the divorce to court because they know the court will favor their rights. This is an unfortunate situation, and it requires a skilled divorce and custody attorney.
Q: Can Same-Sex Couples Get Divorced?
A: Yes, in the Obergefell v. Hodges decision, same-sex couples were afforded the right to equal marriage rights in the country. This includes the right to marital rights such as benefits, the right to make medical decisions for a spouse, the right to be present in a hospital with a spouse, and the right to a divorce.
Q: Is There a Gender Bias in Custody Cases?
A: Most states have laws that state there is no gender bias when determining custody. These laws state that both parents, regardless of gender, have equal parental rights unless other factors change that. However, this is not always the reality during a custody case. Each individual court and judge can bring their own biases to a case. Courts often have more bias toward mothers than fathers for custody. However, courts are more likely to believe fathers that allege abuse or alienation from a mother than mothers who allege the same about a father.
Q: Do Same-Sex Marriages Get Spousal Benefits?
A: Yes, same-sex marriages have the same spousal benefits that an opposite-sex marriage receives. This includes spousal benefits, Social Security benefits, survivor benefits, death benefits, tax exemptions, insurance benefits, the right to protected family and medical leave, adoption rights, and other rights and responsibilities of marriage.
Q: What Custody Arrangement Is Right for a Child?
A: In most states, the court presumes that it is in the child’s interests to have equal, quality, and substantial time with both of their parents. Unless one party proves that it is not in a child’s interest to spend time with the other parent or parents are unable to schedule an equal split, the court will try to have joint custody in a 50/50 split. If an equal split isn’t possible, the court will try to create a parenting plan that maximizes a child’s time with each parent.
If parents make a parenting plan on their own, the court must approve it. The agreement must be in the child’s interests, which includes spending time with both parents unless there are extenuating circumstances.
Defending Your Rights
At Stange Law Firm, we understand how the legal system is often hostile to the rights of same-sex parents and spouses. We want to provide you with the compassionate and effective representation you deserve. Contact our team today.