Donna Dougherty Law P.C.

Unprecedented divorce challenges for same-sex spouses

It’s likely that many same-sex couples in Virginia and elsewhere in the country are still celebrating the June 2015 Supreme Court decision to give homosexual couples the right to marry. However, the dream of marriage may be over for many other couples who are taking the steps toward a divorce instead. It might be easy to assume that having the right to get a same-sex divorce simplifies things a great deal. This may be true, but it can also cause numerous complications that have never before been seen in this country’s legal system.

Depending on each state’s laws, same-sex couples may need to establish residency in the state they live in before being able to file for divorce – just the same as heterosexual couples have needed to do. This might make a quick split more difficult for couples who have just moved into the state. Previously, unmarried same-sex couples would only need to break up and divide their community property on their own. Property division for same-sex marriages would now be subject to local divorce laws.

Child custody disputes may prove to be the most challenging task of all for same-sex couples and divorce lawyers. For example, what if one spouse is the child’s biological parent, and the other spouse did not legally adopt the child? Would the biological parent retain sole custody, or would parenting time be split between both of the former spouses? What might happen if a surrogate had conceived the child for the couple, neither of whom were the natural parent? Some family law attorneys claim that defining and interpreting new same-sex marriage and divorce laws will be a complex challenge that might take years to straighten out. However, despite the complications, the nationwide legalization of same-sex marriage remains a triumph for homosexuals and gay rights advocates.

Source: Examiner.com, "Divorce and child custody Issues for same-sex couples," Cherri Northcutt, Oct. 21, 2015

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