The US Supreme Court’s historic decision to legalize same-sex marriage sparked a rush among LGBT couples to marry and caused the number of gay marriages to spike in 2015. And just as same-sex marriages become a normal occurrence across the nation, so too, unfortunately, will divorce.
Although same-sex couples enjoy the same divorce rights as any other couple in every state, you may encounter more complications when finalizing your separation. Divorce attorneys in Santa Fe advice LGBT couples considering divorce to seek legal counsel for a smoother and less frustrating process.
Cohabitation vs. Marriage
Determining the start of the union can be difficult for same-sex couples who were already cohabiting long before they got married. When your marriage began, after all, is what courts use to base the division of assets and alimony payments or spousal support. It may also affect child custody decisions.
A marriage that lasted longer carries more weight. It’s also more advantageous for the spouse who earns less (or doesn’t earn) income when awarding assets and alimony.
The difficulty here lies in whether the state you’re living in recognizes your cohabitation with your partner before marriage. Some states and courts agree to backdating or counting the years of cohabitation in the total years of marriage for a longer-term union than the official or legal date.
A joint bank account, a registered domestic partnership, or civil union may strengthen your case, although it still depends on the laws of each state.
Dissolving Domestic Partnerships
While a domestic partnership or a civil union may help prove the true length of your relationship before the legal start of the marriage, it may also further complicate the divorce proceedings. Same-sex couples must first dissolve their domestic partnership or civil union before getting a divorce. To do this, you’ll need to file a complaint for dissolution and a case information statement to dissolve a domestic partnership.
Knowing whether the state you’re living in recognizes domestic partnerships helps speed up the process. States that recognize domestic partnerships usually maintain a registry. Additionally, some states that honor domestic partnerships only do so in certain counties or cities.
- California (recognized in counties, including Los Angeles, San Francisco, and Alameda)
- New Mexico (recognized only in Albuquerque)
- Florida (recognized only in West Palm Beach and Broward County)
- Illinois (recognized in Chicago, Cook County, and Oak Park City)
- Oregon (recognized state-wide)
Dividing Marital Assets
Marital property division follows the same procedure for same-sex couples as with heterosexual couples. Anything acquired during the marriage will be divided fairly between you and your spouse if you live in a state that observes community property laws, like New Mexico and California. In states that follow equitable distribution laws, however, the spouse who bought or earned the property gets it in the divorce.
Again, the catch in dividing marital assets may lie in whether the state (or judge) will include your years of cohabitation in the total marriage term. Remember that property division depends on the judge’s discretion, so having a competent divorce lawyer specializing in LGBT issues would improve your chances of receiving the property owed to you.
Taking the time to learn the ins and outs of divorce among same-sex couples will help facilitate a smoother separation process. Knowing the factors that may affect any part of the proceedings is essential to ensure fairness and an amicable split.