July 20, 2015

Challenges of Same-Sex Divorce

Divorce, Same Sex Marriage

In the wake of the Supreme Court’s historic ruling extending the right to marry to all people in each one of the 50 states, there is one bittersweet factor for many same-sex couples: they can now also be divorced. Until now, they could not.

A good example of this concerned one couple who had married in 2009 in Massachusetts, where same-sex marriage was legal, had moved to Louisiana, where it was not. Massachusetts is a state that requires that a couple maintain residency in order to divorce, meaning that this couple was unable to be divorced — like many same-sex couples in the country before June’s SCOTUS ruling, they were bound together legally, financially, and emotionally, even though they no longer wanted to be.

There will be several complicating legal factors when considering same-sex divorce. One is in regards to children. Most family law rulings have traditionally favored the mother of the child, as a result of common (if somewhat outdated) perceptions of caregiver roles. But in marriages in which both parents are the mother of the child — or neither is — can be more complicated to legally untangle. Oftentimes these types of marriages are not treated in the same way that heterosexual marriages are when it comes to child support systems and shared parenting schedules. This is just one of the many aspects of the current legal system that will have to be revisited as same-sex marriage and divorce becomes more prevalent nationwide.

In addition to the expected challenges when considering same-sex divorces, there are also issues regarding common law partners that will need to be addressed and resolved. These, like most social issues that see a dramatic transformation overnight, will take time to be considered and ironed out, and until then, will likely be handled on a case-by-case basis.

Take for example a couple that was common-law married for a decade before their state made marriage legal. Once their state did make marriage legal, they were married for three years, and now want a divorce. One legal question that may need to be answered in this case is whether or not that couple would be retroactively eligible for the benefits of marriage they did not receive during the decade they were together.

If you or someone you know has questions about same-sex marriage or same-sex divorce, the most important step is to seek legal counsel. Do not go through it alone. Contact an experienced DuPage County family law attorney today.