In June 2015 Obergefell v. Hodges proved that love is equal for everybody across the United States. The question of same-sex marriage concerned America for long before the Supreme Court finally legalized it. It seems that amid the celebration of love and equality, we tend to forget that as much as same-sex couples can marry now, they can divorce as well. And even think of that, very few are actually aware that same-sex divorce differs from a regular one. Love is equal, marriage is equal, but things are different when it comes to divorce. So, let’s find out why.
Same-sex Divorce and Residency
Despite the fact that same-sex marriage is legal at the federal level, the legal status of same-sex relationship can affect the divorce process. A divorce is different for couples that are in civil union and for those who are married. For those bound by a civil union and seeking a divorce, it is mandatory to maintain residency in a state where they entered the union. Only that way a divorce will be official. However, married same-sex couples can divorce in any state.
In the state of California, at least one spouse should be a resident of California for six months prior to the divorce. However, California one more time proves to be exceptionally supportive for the LGBT community. The state permits same-sex divorce for non-residents of California as well. Considering that the couple married in California but none of them continues to reside there.
Determining Marital Assets
One tricky aspect of same-sex divorce has to with determining couple’s joint assets. The fundamental question here is how long a couple has been together. Imagine a couple has been together for 20 years but married only a year ago. Now they suddenly want a divorce. Determining the estate becomes tricky in such a case. And there is no mechanism to deal with it for now. Note that different states might have varying regulations on dividing assets based on the length of a relationship.
It’s interesting to know that before the Supreme Court legalized same-sex marriage only five states converted all the current civil unions into marriage. Those were Delaware, New Hampshire, Vermont, Connecticut and Rhode Island.
How About Child Custody?
Child custody can be complicated to deal with as well. Consider parental rights and responsibilities in a context where a couple did not formally adopt the children prior to their marriage. It can cause some trouble that will concern visitation and child support.
The connection with the biological parent is a priority in court. It can result in forbidding strong legal ties between the child and the non-biological parent.
Moreover, if only one of the partners is the legal parent then it will also affect the process. In many states, the second parent is almost deprived of any rights in this area. So, seeking legal or physical custody is not an option for them. Sometimes, problems with visitation can occur as well.
Nevertheless, some states have addressed this issue and have recognized second parents based on their willingness to conceive and raise the children.
While this post might have answered some of the confusion regarding same-sex divorce, it is always worth to consult with a specialized divorce attorney. A divorce can get out of hand and complicated, especially considering that the regulations differ from state to state. If you are divorcing in California, divorce attorneys at Margarian Law Firm are at your service. Because guess what? If same-sex couples now enjoy their right to marry they also deserve a stress-free divorce.