Since LGBT marriages were federally recognized in 2015, thousands of same-sex couples have gotten married. However, like heterosexual marriages, some LGBT marriages end in divorce.
Divorce can present legal challenges for any couple, but because same-sex divorce is relatively new, there are some unique challenges same-sex couples can face during the divorce process. If you are preparing for your own divorce, it can be helpful to consider some of the challenges other LGBT couples have encountered.
Dissolution of marriage may not be enough
A same-sex couple's legal relationship status presents one possible challenge during divorce. Before LGBT marriages were federally recognized, many couples filed for domestic partnerships instead. When LGBT marriages became federally recognized, some states automatically changed domestic partnerships to marriages. However, this did not occur everywhere.
To make sure that, legally, your relationship is completely ended, it is important to know exactly what your relationship status is. If your domestic partnership was not automatically converted to marriage, you may need to dissolve your partnership as well as your marriage.
Determining a fair amount for alimony can be tricky
Before marriage was federally recognized, some couples married in a state where it was legal, but then moved back to a home state where their marriage was not legal. Other couples entered a domestic partnership. Yet, many other couples just lived monogamously together for many years before marriage became an option. Because there were a variety of approaches to committed relationships, determining the duration of a marriage is another challenge same-sex couples can face.
The duration of marriage is an important factor the court uses to determine a fair amount of alimony. Other factors that courts consider include the standard of living during the marriage, if there is a need for alimony, if there is an ability to pay alimony, the earning capacities of each spouse and others.
Dividing property can be especially difficult
The duration of a marriage is also an important factor the court uses when determining what counts as marital property. Generally, marital assets and liabilities are those acquired by either spouse or both spouses during the marriage. Assets and liabilities acquired by either person before the marriage are generally considered nonmarital and are not divided during divorce. However, without a clear determination of the beginning of the marriage, it can be difficult to determine what property should be divided during divorce and what property should not.
To complicate the situation further, the duration of marriage is a consideration the court uses when determining how marital property should be divided. Although the court can divide marital property equally, it can also award an unequal distribution based on the contributions each spouse made to the marriage, each spouse's economic situation, an interruption to career or education opportunities, the contribution of one spouse to the career or education of the other and other factors, including the duration of the marriage.
An understanding of challenges like these can help you prepare for possible challenges you may encounter in your own divorce. Although any divorce can be difficult, same-sex divorces can involve some unique situations that should be considered when determining the best divorce strategy for you.