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The legal challenges of same-sex divorce

On Behalf of | Mar 8, 2021 | Same-Sex Couples & Divorce |

Although same-sex marriage has now been legal in the United States since 2015, divorce for same-sex couples can be quite complex, especially for couples who were together before marriage was legal in their state.

Same-sex couples going through a divorce follow the same laws concerning the division of property and debt, rights to visitation or custody and eligibility for child support as do heterosexual couples. Every divorcing couple must meet the registration requirement of the state in which they are residing.

However, some issues concerning property, custody and child and spousal support come up for a variety of reasons related to how long the couple was together.

Divorce in California

California has recognized same-sex marriage since 2008, and LGBT couples also follow the same or similar processes for divorce as heterosexual couples. Couples do not have to have a reason to divorce, as California is a no-fault state. They must reside in the state for at least six months in order to file for divorce. As California is a community property state, when same-sex couples divorce, the judge will divide all marital property equally.

LGBT couples have the same options for dissolution of marriage as heterosexual couples and can go through a standard divorce or through other alternative dispute resolution methods.

Complexities of exceptions for same-sex couples

Where it gets more complicated is for same-sex couples who were together before their marriage was legal. Property that was bought by either spouse before the marriage was legalized will be regarded as separate property, even if common funds were used to purchase it. This can lead to an unfair property settlement, and the final decision is up to the judge’s discretion.

Couples who chose to start a family before their marriage was recognized face an uphill battle when it comes to parental rights and visitation. Because it was virtually impossible for them to adopt a spouse’s biological children at the time when their relationship was not legally recognized, most states will not award them parental rights.

Alimony is usually awarded to a spouse who has a financial need. But for couples who were together many years before their union became legal, the courts do not have a standard method of determining the amount of alimony to award. In California, palimony is awarded based on the number of years the couple was together before their marriage was legal.

If you are considering divorce, it is important to find a family law practice that supports, advises and will fairly represent same-sex couples going through divorce.



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