It’s been just two years since the Supreme Court legalized same-sex marriages, but couples are already finding out that getting married was the easy part. Divorce is never a simple process, but for some same-sex couples, the process is complicated by the timing of the law.
The primary issue for many splitting couples is the length of their relationship. Many had been together for years – decades even – before having the right to get legally married. The courts have discretion regarding divvying up assets, which may or may not favor one party.
Along with making same-sex marriage legal in all states, the Supreme Court’s ruling also provided gay couples with the same protections given to heterosexual couples, including tax benefits, the right to make medical decisions and access to the spouse’s employee benefits.
One of the primary issues is the length of the marriage. The length of a marriage dictates whether a spouse is entitled to alimony and how the assets are divided. The longer a couple has been married, the more likely a judge will award a lower-earning or no-income spouse alimony or a percentage of the assets.
For couples that have been together several years but were only legally married for two, determining the start of the marriage is not quite clear from a legal standpoint. Not knowing the marriage’s starting point can complicate the entire process.
Courts in some states will agree to tack on the years of cohabitation and consider the marriage longer-term than the legal date. However, legal experts say the backdating is not a sure thing.
If one spouse earned more than the other, the lower-earning spouse may be out of luck. Even if couples can prove that the relationship lasted longer than the marriage, there is no guarantee that it will work.
Same-sex couples face the same issue when it comes to child custody.
“As long as both parents are competent and willing, equal presence in a child’s life is important and just,” says Leonard Rodarte Siegel’s family law firm. While psychologists agree, determining child custody can be complex with same-sex couples.
If the couple adopts a child or is born to one of the spouses, determining custody and support can be complicated. In most cases, only one party will have legal parental rights even if both are raising the child. When divorcing, the lack of parental rights can prevent the other party from having a relationship with the child.
One way to solve this dilemma is to go through mediation. A collaborative approach to divorce requires both parties to cooperate but provides greater flexibility.
Along with these issues, couples are facing an unexpected problem: Their marriage may not be dissolved after divorce. Many same-sex couples have to end two legal unions to completely end their marriages.
In some states, same-sex couples were required to dissolve domestic partnerships if they entered into them. Other states left the partnerships intact. In the latter case, couples would have to dissolve both their legal marriage and the domestic partnership to sever all ties with their former partners.
After years of fighting to legalize same-sex marriage, couples are facing an even bigger battle in the process of getting divorced. From child custody issues to alimony and asset distribution, there are many legal hurdles that same-sex couples will face when separating. Mediation is one way to go about dissolving the marriage and will provide the couple with more options and flexibility. Provided they can cooperate, most of these legal issues can be resolved outside the courtroom.
