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Does marriage equality equal divorce equality?

On Behalf of | Jul 11, 2022 | Firm News

When marriage equality finally happened, we all celebrated, and we still celebrate that equality today. The flip side of marriage equality also means divorce equality. And, just as there are no longer separate sets of marriage rules for same-sex couples, there are also no separate divorce rules.

That said, there are a few quirks.

Pre-equality

Same-sex couples in Riverside likely remember the legal realities of marriage prior to federal marriage equality. Getting married meant residing in or traveling to a state where your marriage would be recognized. Divorce was often extremely difficult because, unless you resided in a state that recognized it, one or both spouses had to establish residency in a state that did recognize the marriage to qualify for a divorce in that state.

There are still some differences

Broadly speaking divorce rules are the same, but how same-sex couples split property and assets can have some hiccups. This is especially true for those couples that reside or resided in states where marriage equality was not recognized until it became a federal requirement. In some cases, couples were together for years or even decades prior to legal marriage. However, even though they may have been acting as if they were married for decades, under the law, they are treated as a recently married couple.

What does that mean?

For property division purposes, this means that the property acquired prior to the legal marriage can be treated as non-marital property. This means that whoever has property in their name or can prove they acquired them prior to the marriage may be entitled to keep them after divorce.

How can you protect yourself?

As with most legal problems, the solution is usually through legal documents. These include pre-nuptial , post-nuptial and cohabitation agreements that clearly outline your living arraignments and asset division.

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