Gay couple angry at each other after argument

Issues in Same-Sex Divorces

Brazil Clark, PLLC Jan. 18, 2024

Navigating through the complexities of a same-sex divorce can be an emotionally taxing and complex process. The intricate legalities and unique challenges that arise can often leave individuals feeling overwhelmed and uncertain. It's not just about ending a marriage, it's also about safeguarding your rights, securing your future, and often, protecting the interests of children involved. Understanding your rights and the potential issues you may encounter is crucial in this journey.

That's where Attorney Frank Brazil and his dedicated team at Brazil Clark, PLLC step in. Based primarily in Nashville, Tennessee, they serve clients throughout a range of secondary locations, offering their extensive experience and empathetic approach to those who need it most. They are committed to providing knowledgeable and compassionate legal counsel to individuals and families going through the complexities of same-sex divorces. 

Understanding Same-Sex Divorce

The intricacies of same-sex divorce differ somewhat from those of heterosexual divorce due to varying state laws and regulations. This section aims to provide an overview of what constitutes a same-sex divorce and the unique challenges it presents. It's important to remember that each case is unique and may require a different approach based on individual circumstances. 

Residency and Filing Requirements

Filing for divorce requires meeting certain residency requirements. These vary by state and often involve living in the state for a specific duration before filing. Here is a rundown of the specifics: 

  • You must meet your state's residency requirements, dictating how long you or your spouse must have lived in the state before you may file for divorce. 

  • If you were married in another state, you still must get divorced in the state where you currently meet the residency requirements. 

  • Some states allow you to get divorced in their courts as long as you got married there, even if you're living in a country that doesn't recognize same-sex marriage. 

  • You'll need to provide a legally accepted reason (or ground) for divorce. Every state offers some type of no-fault divorce, which means that you don't need to tell a court why your marriage is over, just that neither spouse wants to remain married. 

Navigating Child Custody and Support

Child custody decisions are primarily driven by what's in the best interest of the child. Courts consider a variety of factors, including the bond between the child and each parent, the ability of each parent to provide a stable environment, and, in some cases, the child's own preferences. In same-sex divorces, these considerations can become complex due to biological ties or adoption processes. 

For example, if one partner is the biological parent and the other isn't, it may influence the court's decision. However, it's important to note that non-biological parents also have rights, especially if they've played a significant role in the child's life. In such instances, the court may consider the intent of the parents at the time of the child's birth or adoption. 

On the other hand, child support is typically determined by state laws and guidelines. These guidelines take into account factors like the income of both parents, childcare expenses, medical costs, and the standard of living the child enjoyed before the divorce. The goal is to ensure that the child's needs are adequately met post-divorce. 

Spousal Support Considerations

As in heterosexual divorces, LGBTQ+ spouses may be entitled to alimony upon divorce. However, the specifics can be influenced by a variety of factors: 

  • Length of the Marriage: Generally, the longer the marriage, the more likely it is that a judge will award spousal support to a spouse who needs it, provided that the other spouse has the ability to pay. This can become complicated when considering the years a couple lived together before they could legally marry. 

  • State Laws: Some states apply different rules for awarding alimony in long-term marriages. It's also worth noting that judges tend to have considerable leeway in making decisions about spousal support, which can make it challenging to predict the outcome of any particular case. 

  • Consideration of Pre-Marital Cohabitation: Some judges may add the additional unmarried years to the length of the legal marriage before deciding on spousal support. However, others might not consider any relationship outside of a legal marriage. Also, state laws allow judges to consider any circumstances they deem relevant to the issue of alimony. 

  • Palimony: In some states, such as California, a spouse may ask the judge to award "palimony" (financial support for unmarried partners) based on the years the couple spent living together before they legally married. 

Navigating these complexities requires an experienced legal team.  

Property Division in Same-Sex Divorce

Property division can be a complex issue in any divorce, particularly for same-sex couples who were together before marriage became legal. In most divorces, a judge will divide a couple's marital property and debts between the spouses. This includes any property or assets that spouses earned or acquired during the marriage, although there are exceptions. Judges have the authority to decide on any way of dividing a couple's property that they deem fair. 

However, for same-sex couples who were living together and sharing their lives before marriage became legal, this rule could lead to an unfair property division. Some judges might recognize the unfairness of the situation and split the value of the assets between the spouses, while others may not consider any relationship outside of a legal marriage. 

State laws allow judges to consider any circumstances they deem relevant to the issue of property division. Therefore, it's advisable to work with your spouse to reach a marital settlement agreement to avoid uncertainties and lower the cost of divorce. Mediation can often be a helpful tool in reaching a complete agreement. 

Marital Settlement Agreements

In the complex landscape of same-sex divorce, marital settlement agreements serve as a crucial tool to provide clarity and resolution.  

A marital settlement agreement, often reached through divorce mediation, is a legally binding document that outlines the terms of a divorce, including property division, child custody, and spousal support. In this process, a neutral professional meets with both parties to help identify issues and develop mutually agreeable solutions. 

For couples who registered as domestic partners or entered into civil unions before the legalization of same-sex marriage, the process can be even more complex. Some couples may have registered in multiple states, cities, or counties, and later married. If you're in this situation and are ending your relationship, you might need to terminate your partnerships in addition to obtaining a divorce. 

Legal Assistance in Same-Sex Divorce

Understanding and navigating a same-sex divorce can be a challenging journey—but you don't have to face it alone. Attorney Frank Brazil and his dedicated team at Brazil Clark, PLLC are here to guide you every step of the way. Based in Nashville, Tennessee, they are committed to providing compassionate and knowledgeable legal counsel to those facing the complexities of same-sex divorce. By working closely with their clients and understanding their unique needs, they strive to achieve the best possible outcomes.