Heinrich Christian, PLLC Heinrich Christian, PLLC
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The continuing complications of same-sex divorce

Obtaining the legal right to marry was a major hurdle for same-sex couples. Now, the newest hurdle some of those couples face is getting a fair divorce.

The patchwork quilt of laws regarding same-sex unions that existed for several decades in the nation has left a legacy of issues that same-sex couples still can't escape if their union predates the Obergefell decision by the Supreme Court -- even if their marriage doesn't.

Many same-sex couples had marital-like relationships in place long before they could have a legal marriage where they were living. Sometimes that relationship was strengthened through whatever legal means were available, and sometimes not. However, an absence of formal documentation doesn't mean that the relationship didn't exist.

The start date of a marriage has a number of ramifications for a divorcing couple, impacting everything from the financial aspects of a divorce to the interpersonal consequences. The longer a couple has been married, the more likely it is that a court will be inclined to order support for a spouse that has little or no income.

The division of property is impacted by the marriage date, since property that's owned prior to marriage is usually not subject to a split. If same-sex parents adopted a child prior to the legalization of same-sex marriage, the odds are high that only one spouse's name appears on the child's birth certificate. A parent shouldn't be penalized because discriminatory laws in the past prevented the legal parent-child relationship from being established.

Support, asset division and custody issues can complicate even heterosexual divorces. However, for same-sex couples, the additional cost of litigating a divorce with these issues can be enormous and very time-consuming. For that reason alone, many same-sex couples could benefit from collaborative or mediated divorces rather than litigation. Both alternatives allow a couple -- not a judge -- to control their own future. Even same-sex couples who are having a hard time finding common ground during a divorce may agree that one of these alternatives is preferable to allowing the state to continue controlling the nature of their relationships.

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