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Same-sex couples may face obstacles in divorce

On Behalf of | Jun 17, 2020 | Divorce |

In 2015 when the Supreme Court ruled that same-sex couples had the right to marry in all 50 states, many celebrated. It was a victory for the LGBTQ community. But like any marriage, divorce may be inevitable. Unlike heterosexual marriages, however, same-sex couples face an additional set of obstacles during divorce.

A few of these obstacles include asset division, spousal support and child-custody.

Dividing Assets & Deciding Spousal Support Marriage Started

photo of a person holding a small rainbow LGBTQ flag

For heterosexual couples, divorce is more straightforward because their legal relationship began when they got married. This may be different for same-sex couples, who may have been cohabiting for several years before they married. Because the court looks at the length of the marriage to decide how assets and alimony are allocated, this can present an issue for some couples.

This could be harmful for the lower-earning partner, who may rely on alimony post-divorce as a source of income. Whether or not the court will backdate the relationship is largely in its discretion.

Child Custody Issues

Another issue for same-sex couples when it comes to divorce is child custody. Couples may have adopted a child, had a child from a previous marriage or have a child that was born to only one parent.

In these cases, only one parent may have been permitted to have legal rights because same-sex marriage was not yet recognized. Even if both parents raised the child, only one parent is listed.

This can cause another ripple for the court when determining custody, since records show that only one parent has legal rights.

Handling Divorce Outside of Court

Because litigation can be more stressful during divorce, you and your spouse may benefit from mediation. In mediation, both parties work together to decide what works best for them without the looming presence of a judge. Whereas in the courtroom the judge has more say in the process, couples can work collaboratively through mediation to better accommodate their needs.

Get an ally on your side

Divorce itself is a stressful and emotional process. For same-sex couples, it’s even more so. To overcome the hurdles, it is beneficial to have a compassionate and experienced divorce attorney to help you move forward.


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