Even prior to the Supreme Court’s 2015 ruling in Obergefell v. Hodges that made same-sex marriage legal nationwide, Californians have enjoyed the right to marry under state law since 2013. Just like any other marriage, however, same-sex couples can find that their relationship is no longer a happy one and they are better off breaking up. However, same-sex couples especially Baby Boomer same-sex couples may face different challenges in a divorce than their heterosexual counterparts do.
Divorce and domestic partnerships
Many same-sex couples in California entered into domestic partnerships prior to 2013. These partnerships did not automatically convert to marriages in California once same-sex marriage was made legal. Thus, couples in a domestic partnership may need to go through the legal process of ending this type of relationship before they are free to remarry.
Alimony in a same-sex divorce
While state laws on alimony vary, generally courts will decide how much should be paid and for how long, oftentimes taking the length of the marriage into account. This could present problems for Baby Boomer same-sex couples who were in a relationship for many years before they could legally married. Depending on the situation a court may or may not take these years into consideration, which could present problems for a same-sex spouse who is depending on alimony to stay afloat financially post-divorce.
Child custody in a same-sex divorce
Oftentimes in a same-sex relationship couples may adopt a child, but only one partner may be considered the child’s parent for legal purposes. Other times one partner in a same-sex relationship may give birth to a child prior to the couple’s marriage, making that child legally the biological child of only one partner. If steps are not taken to have the other spouse adopt the child it could present problems when it comes to child custody and divorce, as the child’s other parent may have no legal rights to the child.
Alternative dispute resolution may be preferrable in a same-sex divorce
Couples in a same-sex divorce face unique challenges. One way to overcome these obstacles is to try to reach a settlement out-of-court. Sometimes a couple can utilize the services of a mediator to help them negotiate a settlement on their divorce issues. This may lead to a result that is more satisfactory to both partners than one that would be handed down by a judge. Keep in mind that even if you choose to mediate your divorce you can still be represented by an attorney. This post does not contain legal advice, but readers are encouraged to explore our firm’s website for further information.