Introduction
Divorce is never easy, but for LGBTQ+ couples, the process can be uniquely challenging due to evolving laws, social stigmas, and specific legal hurdles. Whether the issue involves child custody, spousal support, property division, or the legal recognition of the marriage itself, LGBTQ+ divorces often require careful navigation to ensure fairness and equity.
Marriage equality became the law of the land in the United States in 2015 following the Supreme Court’s landmark decision in Obergefell v. Hodges. While this ruling granted same-sex couples the same rights and responsibilities as heterosexual couples, it also created complexities for those pursuing divorce.
Key Legal Considerations:
- Uniform Application of Laws: Same-sex couples are subject to the same state divorce laws as opposite-sex couples, but historical gaps in legal recognition can complicate property division and child custody disputes.
- Residency Requirements: State residency requirements for filing for divorce remain the same for LGBTQ+ couples.
- Retroactive Recognition of Marriage: For couples who were together before marriage equality, the length of their marriage may be disputed in states where legal recognition of the union was delayed.
While legal protections have improved significantly, some states may still interpret laws in ways that disproportionately affect LGBTQ+ individuals.
Unique Challenges in LGBTQ+ Divorce
LGBTQ+ divorces often involve distinct legal and personal challenges that require specialized attention.
- Legal Recognition of Marriage
For couples who lived together before marriage equality, one of the most significant issues is the recognition of their pre-marital relationship. Courts typically calculate property division and spousal support based on the length of the marriage. However, for same-sex couples who were unable to marry prior to 2015, this may exclude years of financial and emotional partnership.
- Child Custody Disputes
Child custody cases can be particularly complex for LGBTQ+ couples, especially when only one parent is the biological or adoptive parent. In some cases, the non-biological parent may face challenges in asserting their parental rights if they were not legally recognized as a parent at the time of the child’s birth or adoption.
- Property Division
Dividing assets equitably can be tricky for LGBTQ+ couples due to the historical lack of legal recognition of their unions. Assets acquired before the legal marriage may not always be considered marital property, leading to disputes over ownership.
- Spousal Support
Determining spousal support can be complicated by discrepancies in career opportunities and income levels between partners. For LGBTQ+ couples, societal biases may have historically influenced career choices, leaving one partner at a financial disadvantage.
Scenario-Based Examples of LGBTQ+ Divorce Issues
Scenario 1: Length of Marriage Dispute
Situation: James and Michael have been together for 15 years but were only able to marry in 2015 following the legalization of same-sex marriage. When they divorce in 2023, Michael argues that their union should be recognized from the time they began cohabitating in 2008. However, James contends that only the legal marriage years (2015–2023) should be considered.
Resolution: The court evaluates the couple’s financial entanglements and contributions from 2008 onward, ultimately deciding to treat their relationship as a de facto marriage for property division purposes.
Scenario 2: Child Custody Dispute Involving a Non-Biological Parent
Situation: Lisa and Sarah share custody of their two children. Lisa is the biological mother, while Sarah, though not legally recognized as a parent, has raised the children since birth. During the divorce, Lisa argues that Sarah has no parental rights.
Resolution: Sarah petitions for custody, demonstrating her role as a psychological parent and her consistent involvement in the children’s lives. The court grants her shared custody, prioritizing the children’s best interests.
Scenario 3: Property Division in a Long-Term Relationship
Situation: Alex and Jordan owned a home together for 10 years before getting married in 2016. After their divorce in 2022, Alex claims sole ownership of the property because it was purchased before their legal marriage.
Resolution: The court recognizes the home as a shared asset due to the couple’s joint financial contributions and shared ownership, dividing it equitably between the parties.
How Courts Handle LGBTQ+ Divorce Cases
- Determining the Length of the Relationship
Courts may consider the length of the relationship, even if part of it occurred before marriage equality. Evidence such as joint bank accounts, shared property ownership, and cohabitation can help establish the duration of the partnership.
- Child Custody and Parental Rights
In custody disputes, courts prioritize the best interests of the child. Non-biological parents may need to provide evidence of their parental role, such as caregiving responsibilities, emotional bonds, and financial contributions.
- Equitable Division of Property
In equitable distribution states, courts aim to divide marital assets fairly, considering factors like income, contributions, and the needs of each party. For LGBTQ+ couples, demonstrating shared financial contributions prior to marriage may be crucial.
- Addressing Bias in the Courtroom
Unfortunately, implicit bias can still impact LGBTQ+ divorce cases. It’s essential to work with an attorney who is familiar with LGBTQ+ legal issues and can advocate effectively for your rights.
How can we assist?
Divorce is a difficult process for anyone, but for LGBTQ+ couples, it can involve unique legal and personal challenges. Understanding the specific issues related to child custody, property division, spousal support, and legal recognition of the relationship is essential for protecting your rights and securing a fair outcome.
At our firm, we have extensive experience assisting clients with divorce cases. Our team includes a board-certified family law attorney, with advanced business degrees, and a specialist in negotiation and mediation. Contact us at 832-538-0833 to schedule a consultation and get personalized legal advice on your situation.