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What Same-Sex Couples Need to Know About Divorce

Published March 17, 2020

Since the 2015 Supreme Court ruling that repealed the Defense of Marriage Act, hundreds of thousands of same-sex partners across the nation have entered into marriage. According to a 2017 Gallup poll, the percentage of LGBTQ+ Americans who were married to a same-sex partner rose from 7.9 percent in 2015 (before the ruling) to 10.2 percent. Naturally, several of these marriages end in divorce. However, same-sex spouses face unique challenges when pursuing a divorce. Let’s take a closer look at what same-sex spouses need to know about divorce.

Defining the Relationship

As the 2015 ruling took place relatively recently, it’s important for the couple to understand the legal definition of their relationship as they move towards a divorce or separation. Many couples, especially those from older generations, lived together in a monogamous relationship for many years before getting married. The length of the relationship is important when it comes to establishing the division of assets and debts. Unlike the divorce of a heterosexual couple, where there is typically a clear distinction of when they entered a legal relationship (i.e., their wedding), many same-sex couples consider their marriage to have begun well before the 2015 ruling. If a same-sex couple has been together for decades, but they’ve only been “legally married” for four years, this discrepancy will need to be considered as they negotiate the terms of the divorce.

Filing for Alimony

When determining spousal support payments, the court typically looks at the duration of the marriage to calculate a fair agreement. Of course, for many same-sex spouses, their partnership existed for years, even decades, before they entered into a legal marriage. In some cases, they may have filed a domestic partnership, but other couples may have simply lived together in a monogamous, committed relationship prior to marriage. As there are currently no clear laws in place to fully assess the length of the relationship before the legal marriage occurred, divorcing couples should attempt to negotiate any spousal support disputes or agreements through mediation.

Dealing With Children

In a heterosexual divorce involving a biological mother and father, both parents automatically have a legal right to pursue custody of the child. However, for many same-sex spouses, divorce can wreak havoc on the non-biological parent’s custodial rights if they have not legally adopted a child who was born prior to 2015. If the biological parent has not legally adopted the child, it is crucial that this parent speaks to a knowledgeable attorney who can help them understand their rights. Of course, if you and your spouse are able to communicate in an open and collaborative manner, child custody matters can certainly be addressed and resolved through mediation.

Support When You Need It

For more information about how divorce impacts same-sex couples, reach out to the compassionate and experienced team at Lee Tyler Family Law, P.C. today. We offer collaborative divorce services to help you and your spouse walk away from your marriage with the support and confidence you need to move on. Call (503) 233-8868 today to learn more.

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