In 2015, the United States of America made a historical decision and legalized same-sex marriages across the country. This was a life-altering moment for gay and lesbian couples, as they could not only live together, but also benefit from tax exemptions, health care plans, and other protections which were until then only available to heterosexual couples.
Of course, the right to marry was accompanied by a right to divorce and the right to a same sex divorce lawyer.
Basics of The Divorce Process
Every state has a no-fault divorce option, which the partners can exercise when they are unwilling to reveal their reason for divorce.
On the flip side, fault-based divorces allow a partner to use their spouse’s marital misconduct – such as abuse or adultery – as their reason for wanting a divorce.
Regardless of the type of divorce, a same-sex divorce lawyer will assist you during:
- The division of property.
- Child custody and child support decisions.
- Spousal support decisions.
- Settlement agreements.
Related: Divorce attorney cost
Every divorce, or dissolution of marriage, will involve a division of the marital property and debts (property and debts acquired from the date of the marriage).
The court will look to divide the marital property in an equitable or fair manner between the two spouses.
By definition, marital property is any property that you acquired before marriage, but what about the property that was purchased before you and your spouse were legally married? How will that property be distributed?
Any property bought prior to marriage might be categorized as ‘separate property’ by the court. Separate property is not divided between the partners and is instead awarded solely to the partner who purchased that property.
However, some courts or judges might acknowledge that the spouses did not get married only because of the absence of a law, and so the property acquired before the marriage might still be treated as marital property and divided accordingly.
Child Custody and Support
We strongly recommend that the partners mutually decide the child support and custody terms, as this could help you prevent an intense and potentially ugly legal battle.
If you decided to start a family before getting married, you might not have any basis to adopt your spouse’s biological child, since you did not have a relationship recognized by law. As a result, it is unlikely that you will be awarded visitation or any other parental rights.
However, since marriage equality was only introduced recently, cases where one of the spouses had a child during a same-sex marriage, might be treated differently from court to court. The judges might draw parallels from heterosexual marriages, where, in case a child is born during the marriage, it is assumed that the husband is the child’s father.
Making spousal support (alimony) decisions are not easy in cases where a same-sex couple was living together for several years prior to getting married. Normally, alimony is determined based on the financial ability (or inability) of the two partners.
If you only started living together after marriage, the decision is pretty straightforward: usually, the longer the marriage, the higher the alimony for the spouse with the lower income.
BUT, what if two people have been living together for a decade, but only got married a couple of years ago? Again, since this is unfamiliar territory, every state, court, and judge might rule differently. Some judges will add the number of unmarried years to the length of the legal marriage, and determine testimony accordingly.
Other judges might not factor in any relationships outside of the legal marriage. Certain states, like California, allow spouses to seek ‘palimony’, which is financial support awarded to unmarried partners. Palimony decisions are based on the time that the couple lived together before getting married.
It is considered beneficial for all the parties if they can come to a divorce settlement outside of court. To encourage such agreements, some courts even offer ‘mediation’ services, which helps couples discuss what they need out of the divorce.
Frequently Asked Questions About Same Sex Divorce
- Can any same-sex couple get divorced in the USA?
Well, the answer is: yes and no. Even though same-sex divorce is legal in all states, there are certain requirements you need to fulfill in order to be eligible for a divorce:
Firstly, you need to be married by law. Without a legal marriage, you cannot get a divorce.
Secondly, either you or your partner must be a resident of the State for a minimum of 90 days prior to filing for divorce OR be a resident of the state for a minimum of 90 days preceding the court’s findings for the divorce.
- What if my partner and I stayed in a civil union and never got married?
For partners in civil unions, the separation process is similar to that of divorce. You will still be able to split assets, file for the union dissolution, and seek assistance from a divorce or family law attorney.
- Different-sex vs same-sex divorce – are there any differences?
The divorce processes are almost identical. Just like in different-sex marriages, homogenous couples file for dissolution, divide the assets in the same manner, are eligible for alimony, custody, child support, and visitation.
The only difference might arise in identifying the marital property. Since same sex-marriages were only legalized recently, a lot of couples had been living together for many years before they were able to get married. So, the judges need to determine whether the marital property comprises only the items that they purchased after getting married, or whether it includes everything bought during the time they lived together even without marriage.
Related: How long does it take to get a divorce
Despite the law, some states still refuse to accept same-sex marriages. If the spouses moved to such a state, it might prove difficult to get a divorce. In such a case, the couple might have to move back to the state where they got married and reside there for a few months or maybe even a year or two in order to get a legal divorce.
Another problem is that, due to religious and ideological differences, certain lawyers might not want to offer their services to same-sex couples. Since there are no federal or state laws in place to prevent such behavior, achieving a divorce becomes more complicated and stressful.
Contact An Experienced Same Sex Divorce Lawyer Today
If you are contemplating a same-sex divorce, you should hire an attorney who is up-to-date with this area of the law. The main reason for that, is that it is a novel territory, and, like we just saw, can bring up questions that have not yet been answered or even identified.
This means that the court might not have a clear rule to adhere to, and you will need a capable and experienced family law attorney to handle your case, who can make impactful legal arguments and help you get the most out of your divorce.
Tommalieh Law has years of experience helping people with their divorce. Our Orland Park family law firm has the knowledge and experience to help you receive the most favorable resolution possible. Contact us today to schedule your FREE initial consultation.