Divorce isn't easy for anyone. It requires time, emotional strength, and legal guidance. While same-sex divorce isn't automatically more complex than opposite-sex divorce, they involve some unique aspects.
The Grounds for Dissolution in Same-Sex Marriages
In heterosexual and same-sex divorces, couples often cite irreconcilable differences or an irretrievably broken relationship as the grounds for divorce. These are no-fault grounds, which means spouses can dissolve their marriage without blaming one another.
Your circumstances, however, may require you to file for a fault-based divorce, in which you must prove that either your or your partner's actions caused the marriage to break down.
No-Fault Divorce Grounds
In a no-fault divorce, couples mutually declare that their marriage is irreparably broken, that reconciliation isn't possible, and that there wasn't any wrongdoing by either party.
The advantages of no-fault divorces include:
- Simplicity: It's often easier to file for a no-fault divorce because you don't have to prove any misconduct.
- Privacy: The reasons behind the divorce can remain private, meaning public documents won't state them and that courts won't discuss them.
- Reduced conflict: Because no one assigns blame, this approach can lead to less hostility and emotional distress.
Fault-Based Divorce Grounds
The grounds for pursuing a fault-based divorce, where one party perceives the other's wrongdoing as primarily responsible for ending the marriage, include:
- Adultery: This requires proof that one spouse had sexual relations outside the marriage.
- Cruelty: This can be physical or mental cruelty. One party must prove a pattern of behavior instead of just isolated incidents.
- Abandonment: To use abandonment as grounds, one spouse must have left the other for a certain period without agreement and intent to return.
Pursuing a fault-based divorce is considerably more contentious and requires engaging in a much more adversarial legal process. Proving fault-based grounds, however, will influence certain aspects of the divorce, such as spousal support or child custody arrangements.
How Pre-Marriage Cohabitation Influences Asset Division
Before the Supreme Court's landmark decision in Obergefell v. Hodges in 2015, many same-sex couples lived together as domestic partners. These couples may have had prolonged periods of cohabitation (spanning years or even decades) and accumulated several joint assets and debts before the courts would permit them to marry.
For example, they might have:
- Purchased real estate or vehicles together.
- Accumulated shared debts.
- Raised children together.
- Saved for retirement.
Courts may consider years of cohabitation while dividing assets to reach a fair decision. This might involve understanding who contributed more toward each asset or liability. If you and your partner bought a house together before your state legally recognized your marriage, for example, the divorce court judge might consider how much you each invested in the house.
How Legal Recognition Influences Asset Division
The date when your state legally recognized your marriage can also significantly influence asset division during divorce. South Carolina and Georgia legalized same-sex marriage in 2017, making this the date establishing each spouse's property rights. If you married in 2015 but only received state recognition in 2017, the court might consider 2017 as the start date for accumulating marital assets.
If you lived together for 20 years before your state legally recognized your marriage, your marital assets might only include what you accumulated after 2017. The courts, however, would likely consider any property purchased or savings accumulated during your pre-legal marriage years as your joint property.
While LGBTQ divorces have many similarities with traditional ones, these unique elements do require careful consideration. An attorney who's knowledgeable about LGBTQ divorce issues can guide you through the process of pursuing a fair and equitable division of assets that considers not just the period during which your state legally recognized the marriage but the entire span of the relationship.
Determining Alimony in LGBTQ Divorces
Alimony is a form of financial support one spouse extends for a specific period during or after their divorce to maintain the economic well-being of the less financially stable spouse. Like many other issues in an LGBTQ divorce, deciding on alimony or spousal support comes with the challenges of interpreting how long the marriage lasted.
When determining alimony, divorce courts consider each partner's earnings and contributions and the couple's lifestyle during their relationship.
- Length of the marriage: Courts often consider longer marriages as a basis for a more significant alimony order. A 20-year marriage will likely involve larger alimony payments than a two-year one because longer marriages typically build financial interdependence between spouses.
- Income and contributions: Another major factor is each spouse's income. This includes income and other sources such as investments. Financial and non-financial contributions such as raising children or supporting the other spouse's career would also weigh heavily.
- Standard of living: The lifestyle that the couple enjoyed during the marriage is important, as the objective of alimony is often to avoid a drastic quality of life decrease for the spouse earning less.
These factors provide a framework for determining alimony, but they won't apply equally to every case. Courts often have the discretion to weigh factors differently, depending on the couple's unique circumstances. It's possible, for example, for a court to consider your long-term cohabitation to determine your relationship's length, rather than using the date of legal marriage. This interpretation can significantly influence alimony decisions, as longer marriages often result in larger alimony awards.
Additionally, if one spouse made significant sacrifices, such as quitting a job to support the other's career or giving up educational opportunities, a court could consider these contributions too.
Given the case-by-case basis of alimony determination, it's essential to seek legal advice from an attorney with experience handling LGBTQ family law cases. They can provide personalized guidance and protect your interests.
Resolving Child Custody Issues During LGBTQ Divorce
The interaction of sensitive factors, such as biological rights, adoption, and children from previous marriages, can complicate child custody and child support issues in an LGBTQ divorce. Just like in opposite-sex divorces, the child's best interests should always be the court's main priority when making these decisions.
Some considerations include:
- Biological rights: If you are the child's biological parent, you may have a stronger claim to custody. The court will still consider the child's relationship with both parents and their overall well-being. If both you and your partner are biological parents, custody depends on your ability to provide a stable environment, your involvement in the child's life, and the child's well-being.
- Adoption: If you and your spouse adopted the child together, you have equal rights and responsibilities. Courts base custody decisions on the child's best interests. If you adopted the child and the other is a stepparent, local laws may limit the stepparent's legal rights. Some jurisdictions may grant visitation or custody rights based on the child's best interests.
Beyond these specific issues, child support in LGBTQ divorces follows the same laws as opposite-sex ones.
- Both parents have a legal obligation to financially support their children.
- The noncustodial parent usually makes child support payments to the custodial parent.
- Courts determine child support according to each parent's income, the number of children, and the jurisdiction's specific guidelines.
- If your income significantly exceeds your partner's, the court may adjust the child support amount according to the child's needs.
Consulting with an attorney experienced in LGBTQ family law ensures that the divorce proceedings correctly understand and address your rights and obligations regarding child custody and support.
The Unique Challenges of Navigating the Legal System as LGBTQ Individuals
The LGBTQ community has experienced discrimination in the legal system. While those systems have made significant progress recently, including legal recognition of same-sex marriages, some individuals may have a sense of distrust that could ruin their experience during the divorce process.
These concerns can include:
- Fear of prejudice or discrimination: Some LGBTQ individuals might worry that bias against them could influence the outcome of their divorce proceedings.
- Worries about being misunderstood: They may worry that some legal professionals will not treat them fairly or fully understand the legal intricacies unique to LGBTQ divorces.
- Privacy issues: Some might have concerns about privacy and exposure during the divorce process.
Acknowledge and address these feelings and make sure that everyone feels supported and empowered throughout the legal proceedings. Recognize also the continued evolution in the legal landscape. Laws and protections ensure equal treatment for the LGBTQ community, including during a divorce.
The Value of an Experienced LGBTQ Divorce Attorney
By seeking out an experienced LGBTQ divorce attorney, you can receive the guidance, empathy, and skilled representation necessary for navigating the intricacies of LGBTQ divorce law.
A family law lawyer who handles LGBTQ divorce issues can offer unique benefits, such as:
- Knowledge of LGBTQ-specific laws: Understanding the unique legal considerations and challenges in same-sex divorces allows them to provide high-quality guidance and strategic advocacy, including around issues of long-term cohabitation or complicated child custody arrangements.
- Empathy and understanding: An experienced LGBTQ divorce attorney can provide a safe and supportive environment when dealing with the overall disruption of a divorce.
- Legal network and resources: An attorney with experience in LGBTQ family law has likely built a network of professionals, such as mental health and financial experts, and has other resources that can provide additional support and help ensure a comprehensive approach.
Divorce is a significant life event, which can be particularly complex for LGBTQ individuals. Your legal representation and the court should treat you with dignity and respect throughout the divorce process. With the right legal support, you can work toward a fair and equitable resolution and navigate the intricacies of LGBTQ divorce law.