Same-sex couples have the same marriage rights as everyone else. However, special hurdles can come up when dissolving those marriages through divorce.
Our team at the Aberdeen Law Firm understands the unique issues that can arise when a same-sex couple decides to legally end their marriage. An LGBTQ divorce lawyer from our firm can assist you with navigating the court system, advise you of your legal rights, and guide you throughout the entire process.
When did Marriage (and Divorce) Become Legal for LGBTQ Couples?
In 2015, the U.S. Supreme Court case Obergefell vs. Hodges changed the landscape for same-sex marriage. While same-sex marriage at that time was largely outlawed throughout the country, the court held that the U.S. Constitution guaranteed same-sex couples the fundamental right to marry.
Up until 2015, marriage was only possible for same-sex couples in a limited number of states. The states that barred same-sex marriage also refused to grant same-sex divorces. This made divorce especially complicated for couples who lived in states without same-sex marriage.
However, this new ruling required all states to issue marriage licenses to same-sex couples the same way they would with opposite-sex couples. The rights guaranteed in the Obergefell case extend not only to marriage but divorce as well. Same-sex couples who otherwise meet the state’s qualifications for a divorce must be granted one by the courts.
Meeting Residency Requirements for an LGBTQ Divorce
The results of the Obergefell case now require all states to issue marriage licenses to same-sex couples, but they still have to meet their state’s qualifications for divorce. These include residency requirements, and every state has some. Before you can obtain a divorce, either you or your spouse must meet those requirements. The law can differ substantially from state to state, making it vital for you to speak to legal counsel as soon as possible. Our family law attorneys can help.
A residency requirement usually involves living in the state where you intend to file for divorce for a set amount of time before filing the petition. In some places, you must also live in the same county for the minimum amount of time as well.
Only one spouse needs to meet these requirements. Importantly, that person does not have to be the one filing the petition to dissolve a marriage. In other words, you could file for divorce in any state where your spouse meets the residency requirements. Of course, you can also file where you meet those requirements.
Dividing Marital Property Between Same-Sex Couples in a Divorce
Property division during a divorce works the same for same-sex couples as for opposite-sex couples. The way the courts divide this property depends on state law.
Regarding the division of assets, some states use the community property approach, which means that all marital property is split evenly between the parties. Other states take an equitable approach, awarding the property in the most equitable way. This might result in an uneven division between spouses.
Issues Regarding Child Custody in an LGBTQ Divorce
One of the areas where same-sex divorce cases can become complicated is the custody of a minor child. In general, the courts are required to award child custody based on what is best for the child. However, parents have rights in these situations that the courts consider when ruling.
When each spouse has the same legal status involving a minor child, these court decisions are handled like any other case. A good example of this is when both parents are either biological parents or adopted legal parents of the child. In these cases, the courts will work to provide both parents with a way to maintain their relationship with their child as long as that is in the child’s best interests.
The law is still developing in cases where one spouse (a non-biological parent) never formally adopted their minor child, and their parental rights are in question. State law varies dramatically on this issue. In some jurisdictions, a divorcing spouse might still have a case for visitation if they spent time parenting the child during the marriage. However, this might not be the case everywhere.
Benefits of Hiring Our LGBTQ Divorce Lawyers
While many people attempt to divorce their spouse on their own, it’s a good idea to have help. Our divorce attorneys are here to protect you. As your law firm, we can:
Advise You of Your Rights
Your rights may not always be clear during the divorce process. Our lawyers at the Aberdeen Law Firm can advise you of those rights while helping you protect them. From beginning to end, the divorce process is best served with the help of solid legal counsel.
Fight Bias in the Judicial System
The law requires same-sex couples to be treated no differently from anyone else in a divorce case. However, the unfortunate reality is that there is still inherent bias in some parts of the judicial system against the LGBTQ community. A strong advocate and ally who understands the law can be your best protection against unfair treatment and bias during a divorce.
Negotiate With Your Former Spouse
It’s not uncommon for same-sex divorces to conclude with a negotiated settlement. Having an attorney negotiating on your behalf could be your best option when working toward a fair resolution that allows all parties to move on with their lives.
Contact an LGBTQ Divorce Attorney Today
If you believe your same-sex marriage is coming to an end, now is the time to discuss your options with an attorney. Strong legal counsel can fight on your behalf, work to ensure that you are treated with respect, and stand by your side throughout the process.
The team at the Aberdeen Law Firm understands the challenges that can arise with same-sex marriage and divorce. Our LGBTQ divorce lawyers understand the complexities of the law and are here to help you. Contact us today to schedule your free initial consultation.