Same-sex divorces pose unique challenges

Same-sex marriage has been the law of the land here in the United States since 2015, when the Supreme Court repealed the Defense of Marriage Act. Since then there have been an estimated 491,000 same-sex marriages. Many couples live happily together, but some encounter the same problems as their heterosexual counterparts, and their marriage subsequently ends in divorce.

While the marriage may have been a relatively new development for same-sex couples, many had been together for decades before the law changed. As with any long-term relationship, the separation process can be complicated, but more so if the relationship includes a short marriage.

Issues to consider when divorcing

Same-sex couples in this situation serve their best interests if they address certain essential matters:

  • Check the legal status of the relationship: States automatically converted the status of domestic partnerships once same-sex marriage was legal, but it still may be necessary to undertake a secondary process to dissolve the domestic partnership.
  • Custody of the children: Those who have children together before the marriage should ensure that both parents, and not just the biological one, have legal parental rights.
  • Spousal maintenance: This is usually based on the length of the marriage, but there can be a long monogamous relationship or a domestic partnership that will need to be considered if spousal maintenance is to be fair.
  • Living together does not legally count: Unwed cohabitating is not used to measure a settlement, so the pre-marriage years in a monogamous relationship may not count unless there was a domestic partnership in place. This will likely need to be addressed through alternative dispute resolution to establish a fair and equitable agreement.
  • Look at finances: Spouses should explore options to avoid unnecessary expenses -- this can involve tax optimization and ideas for a creative settlement.

A knowledgeable attorney can draft a plan

The right attorney can address all the above issues as well as others unique to the circumstances of the divorce to ensure that the arrangement is fair. Mediation and other forms of alternative dispute resolution can be an effective way for couples to create their fair agreement.

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