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Divorce Attorney For Gay Couples
The landmark 2015 Supreme Court ruling in Obergefell v. Hodges that legalized same-sex marriage nationwide brought joy to thousands of couples across the country. After many years of protracted legal battles, the right to marry was extended equally to all Americans.
Unfortunately, despite the best intentions of all involved, not all marriages will last forever, whether the couple is same-sex or opposite sex. The relative newness of same-sex marriage brings with it the potential for confusion. There are unique legal issues to be considered when dealing with a same-sex divorce.
Obergefell did solve a number of the legal struggles that same-sex couples had previously faced when considering divorce. Under the Defense of Marriage Act, states were not required to recognize same-sex marriages performed in other states.
You cannot get a divorce when the state does not recognize your marriage, leaving many same-sex couples unable to be granted a divorce, even if they met the state’s residency requirements. In recognition of this, many states that did allow same-sex marriage offered special provisions for non-resident divorces for same-sex couples. For example, Illinois state law usually required one spouse to be a resident for 90 days before petitioning for a dissolution of marriage, but the state would waive this requirement if both spouses lived in states that would not grant them a divorce.
Decatur Divorce Lawyer For Lesbian Couples
Even if a same-sex couple was granted a divorce in a state that recognized same-sex marriage as legal, if one of the ex-spouses moved to a state that did not, further legal complications could arise. States that did not recognize same-sex marriage often refused to enforce court orders across the state lines, leaving an ex-spouse vulnerable to potentially losing support if they left the state.
The Obergefell decision eliminated these issues by recognizing same-sex marriage at a federal level, removing the difficulties caused by moving between states. If you have been legally married, you can be granted a divorce in any state.
Potentially complicated legal issues still exist for same-sex couples seeking a divorce. Before the federal recognition of same-sex marriage, many couples chose to enter into “domestic partnerships” or “civil unions” as substitutes for marriage.
Both domestic partnerships and civil unions offer many of the same legal benefits that married couples receive to non-married couples. These benefits may include sick and family leave, health and life insurance, death benefits and state tax treatment. However, both the benefits such an arrangement confers and who is eligible to apply for a domestic partnership vary from state to state. In Delaware and Rhode Island, civil unions were converted to legal marriages in 2013.
But several states have no legal recognition for domestic partnerships; as mentioned above, this can cause complicated legal situations when a couple is seeking to dissolve a partnership that the state they reside in does not recognize. Divorce can often get messy when property, debt, and children are involved, and the same is certainly true of domestic partnerships. More so, perhaps, considering the lack of legal precedent surrounding it.
The Obergefell decision was not the end of legal debate and decision regarding same-sex marriage and divorce. In August 2016, the New Hampshire Supreme Court ruled that a period of premarital cohabitation should be taken into consideration when dividing the property of both same-sex and opposite-sex couples during divorce.
Though more and more couples of all kinds are cohabitating before marriage, this decision is particularly relevant to same-sex partners who may have spent decades together unable to marry. The Court recognized that to limit legal recognition of those relationships to the few years it has been legally possible for same-sex couples to marry would not be an accurate representation of the relationship, and therefore an unsustainable division of marital property. The variances in laws surrounding the parental rights of non-biological parents from state to state add further complexity to the issue of same-sex divorce when children are involved.
Though the Supreme Court’s decision helped to clear many of the struggles same-sex couples faced while seeking a divorce, special complexities still apply. Both opposite sex and same sex couples should seek the counsel of a family lawyer when considering divorce, but same-sex couples will want to seek out a lawyer with legal experience in same-sex issues. Eliminating confusion and getting informed legal advice regarding the requirements and potential legal pitfalls of divorce in your situation will help to make this difficult time as easy as possible.