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3 common issues in same-sex divorce

When the United States Supreme Court ruled same-sex marriage as legal in 2015, this may have meant the law finally recognized your love and relationship.

Legally marrying your best friend, partner, the one who makes you happy was probably an important milestone. One you never imagined would end in divorce. While divorce is a difficult situation for everyone, you may face additional challenges in the dissolution of your same-sex marriage.

Do same-sex couples face unique issues in divorce?

When the Supreme Court case, Obergefell v. Hodges, declared all state bans on same-sex marriage unconstitutional and illegal, it also gave same-sex couples the right to divorce. While they go through the divorce process similarly to other couples, there are some distinguishable differences same-sex couples face. Here are three of the most common problems:

  • Determining length of the marriage: In heterosexual relationships, the duration of a couple’s marriage helps determine asset division and alimony.

However, you may have been married for significantly less time than the overall length of your relationship. This could create unjust alimony payments for either you or your ex-spouse.

Additionally, the law typically defines marital property as property or assets earned while married. However, this could be unfair to you because there wasn’t the option to legally marry. There are also no laws allotting for property gained during a domestic partnership.

  • Children: Even though you may not be the biological parent of your ex-spouse’s child, you may see them as your child too and want them in your life. To make this happen, you may face additional hurdles as a non-biological parent.

If you’ve legally adopted the child and are their stepparent, you’ve established legal rights to the child. However, many states prohibit the adoption of a partner’s child in the absence of marriage.

Courts also struggle with interpreting, “martial presumption,” which places the spouse automatically as the other parent when a woman gives birth. Therefore, they may just favor whoever carried the baby and gave birth in child custody cases.

  • Previous legal arrangements: While some states got rid of legal domestic partnership agreements and required couples to marry after the 2015 Supreme Court Case, others kept both legal unions. In the case of a divorce, you may have to dissolve both the marriage and domestic partnership.

Ultimately, these obstacles can make it difficult for same-sex couples to divorce fairly and justly. While the courts may not account for all the nuances of same-sex divorce, mediation may be an option to protect both you, your ex-spouse and any children involved.

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