Same-Sex Divorce Issues
In the summer of 2015, the United States Supreme Court decided on a ruling that made same-sex marriage legal across the country. This was certainly a great step forward in terms of equal opportunity for the LGBT community. With the right to get married also came the right to get divorced. Kinky Friedman, a former writer for Texas Monthly, once said “I support gay marriage. I believe they have a right to be as miserable as the rest of us.” But I wonder if same-sex couples have it worse in divorce court. I was reading about same-sex divorce on a law firm website last night. The attorneys there have helped many same-sex couples through divorce proceedings.
The reality for many same-sex couples is that they were together for as many as twenty to thirty years before they first got married. In this time, assets and financial decisions were made as if they were married, but courts would not recognize this as a decision between two married people. When two people get a divorce, the courts take into account how long the marriage lasted to determine if alimony or spousal support should be given to a low-earning or no-earning partner. For some, marriage lasted only two years but they had been together for much longer than this. Courts are unsure how to rule fairly in situations like these. The rules for this are often determined at a state level. Some states are willing to view time spent living together as time within a marriage, but this is not guaranteed. It can definitely go either way, and the outcome is high stakes when one partner was bringing in far more than the other.
A similar issue arises in cases of child guardianship. Before same-sex marriage was legal, many same-sex couples would adopt a child and put guardianship to one person. Now, when getting a divorce, the sole guardian will normally have all the rights to the child. The other partner will have no right to see the child even though they may have raised the child just as much as the other partner. Again, the situation is governed on a state-by-state basis and it is ultimately the case law of each particular state that goes on to decide these matters.
Another issue some same-sex couples are facing is an extra union to dissolve. Before same-sex marriage was legal, many couples entered domestic partnerships with one another. This union is not as legally binding as a marriage, but it makes it easier to collect assets after a partner passes away. It also helps for insurance purposes. When same-sex marriage was legalized, some states dissolved all domestic partnerships. Other states chose to keep them intact. Now, some couples are finding themselves dealing with two different state unions to litigate. This is a complex legal situation. If I found myself filing for divorce in a same-sex marriage, I would definitely reach out and hire a lawyer. I want to make sure that the court system does its job in separating assets in a fair and reasonable way. I would hate for case law and bureaucracy to get in the way of justice