The Unique Difficulties Same-Sex Couples Face During Divorce

Despite California legalizing same-sex marriage nearly 10 years ago, spasms of past resistance have created gray areas within the laws that govern LGBTQ divorces. Right after the state overturned their ban on same-sex marriage, a group of civil suits challenged the law, and that resulted in a halt to the unions. Between November 2008 and June 2013, same-sex marriage licenses were barred in California.

Just as overall divorce laws took years to evolve, the legalities surrounding same-sex divorces may take some time to fully form—and that leaves same-sex couples with unique difficulties. Below are a few of these struggles:

  • In California, common law marriage does not exist, so if you lived with a partner for 20 years prior to marriage, the courts do not take those years into account during divorce. This can present a number of issues when dividing assets.
  • In a no-fault divorce, same-sex couples must think about issues like spousal support, child support, and debt and division of real estate and other assets like 401k or pension plans. If they were in a formal domestic partnership for many years, it could change how a court looks at the divorce. Laws in many states where same-sex marriage is legal won’t consider the 10 or 15 years a couple were together before they married—which, again, is oftentimes the case with same-sex marriage. As a result, experts strongly recommend that same-sex couples draw up a prenuptial agreement.
  • When an opposite-sex couple divorces, a judge determines custody rights based on a child’s best interest. That may be challenging for same-sex couples who have raised children together if only one is an adoptive parent. The courts may consider who the legal parents are, if the child was adopted by both parents and if the child is a biological child or not.

Divorce is never easy, but same-sex couples face a number of obstacles that other couples do not. As an experienced Westlake Village divorce lawyer, I can help guide you through this painful and confusing process.

Call the Law Offices of Jeffrey S. Graff today at (805) 633-4999 or contact me online.

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