Before the landmark Supreme Court’s ruling in June 2015 that allowed same-sex couples to marry in all 50 states, only select states allowed gay marriage. Those states saw a flood of weddings, many of them involving couples from states where such unions were not legal.
Like most newlyweds, these couples likely didn’t consider the possibility of divorce down the road. After all, couples don’t say “I do” with thoughts they’ll someday say “I’m done.” Unfortunately, if their marriage didn’t work out, these same-sex couples would find getting divorced far more difficult than heterosexual couples
The Residence Requirement
To obtain a divorce, these couples would need to return to the state where the wedding was performed, since their own state didn’t recognize their marriage. The problem was that most states required residency to file for divorce, and establishing residency took at least six months.
Few couples had the means or flexibility to move to another state for that length of time, so many of those couples were unable to legally divorce. Even if they physically separated, they were unable to remarry. They had to files their taxes together. They shared credit ratings and faced many other challenges. They were trapped against their will in a relationship they no longer wanted.
DOMA Changed Everything
The Supreme Court’s ruling on the Defense of Marriage Act (DOMA) changed all that. With same-sex marriages universally recognized by all states, couples who were married in one state and wanted to divorce in another could finally part ways, just like traditional couples.
From a legal perspective, gay and lesbian divorces are handled in the same way as heterosexual divorces.
All divorces require the intervention of a court of law where a judge issues a final divorce decree, a court order declaring the legal end of a marriage or civil union. But how the laws of divorce and separation will be applied to same-sex marriages is still being determined.
Child Custody Issues Are Complex
While the division of assets is usually resolved in Civil Court and handled much the same for same-sex couples as traditional couples, child custody is an issue that can be especially complicated.
The traditional perceptions of caregiver roles, which usually favor the mother, may not be cut and dry. And the same is true for biological ties when a child shares DNA with only one or neither of the parents.
Child custody issues are heard in Family Court. If one partner is the biological parent of the child, and no second-parent adoption was previously done, then the parent with the legal relationship will be granted custodial rights.
If both partners are legal parents, as in the case of joint adoptions or when the second parent has adopted the child, then they both will be granted custody rights. But there are still plenty of uncertainties, many of which are left to the judge’s discretion.
What should you do if you find yourself facing same-sex divorce and children are involved?
The best possible solution is to try to reach an agreement on child-related issues and avoid a parentage or custody battle in court. Besides being costly, a court case can take an emotional toll on both parties and especially the child.
Consider working with a custody mediator and family law attorney. They can guide you in finding compromise on issues of:
- Legal Custody – Who has the right to make decisions about the child
- Physical Custody – Where and with whom the child will live
- Visitation – How frequently the non-custodial parent can see the child and under what guidelines
- Child Support – Amount to be paid by the non-custodial parent toward the costs of raising the child
Speak to an Experienced Family Law Attorney
Divorce is a difficult, often heart-wrenching experience whether the couple is gay or straight. A family law attorney who has expertise in handling same-sex divorce will help you sort through the issues. Scott Schlegel of Schlegel Law Group in Orlando, Florida can answer your questions and provide guidance on these matters.