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Same-sex couples may face unique divorce legal issues


Same-sex marriage has been legal in Virginia and across the nation for several years now. Therefore, it is understandable that same-sex divorce is also becoming more commonplace. However, when it comes to same-sex divorce, same-sex couples may face unique issues that heterosexual couples do not.

Take, for example, the issue of child custody. Same-sex couples may choose to adopt a child, or use just one partner's DNA and a surrogate to conceive a child. In situations like this, it is possible that only one of the partners is, for legal purposes, considered to be the child's parent, despite the fact that both partners may play an equal role in raising the child. This could pose problems for the non-legal parent if the couple decides to split, and the non-legal parent wants to seek custody or visitation rights with the child.

Another issue that same-sex couples seeking a divorce may have to grapple with is spousal maintenance (also known as alimony.) In Virginia, as in many other states, the court may take the length of the marriage into account when awarding maintenance. However, while a same-sex couple may only have been legally married for a couple of years, they may have been living together in a long-term relationship for many years before that. So, the court faces the issue of whether to award spousal maintenance based on the legal length of the marriage or whether to award spousal maintenance based on how long the couple cohabitated with one another, even if they were unable to legally marry during that time.

As you can see, while all divorces may present certain sticking points, those seeking a same-sex divorce may face quandaries that heterosexual couples going through a divorce do not. Of course, in the end all divorces are unique and there is no cookie-cutter solution for resolving divorce legal issues. Therefore, both parties to a divorce should make sure they understand their legal options, so they can make informed choices moving forward.

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