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3 challenges same-sex couples face in divorce

When the Supreme Court ruled state bans on same-sex marriage were unconstitutional in 2015, many same-sex couples celebrated by officially getting married. All over the country, couples filled their local city halls to say their vows and to earn the rights that come with legal marriage. Yet, now five years later, some of those couples are divorced and it has become clear that same-sex couples face unique challenges in divorce.

Some of those significant challenges include the following:

1. How the length of a marriage affects division of property.

Virginia began issue marriage licenses to gay couples in 2014, but many of those couples had been together for a long time – some more than 20 years. So, if those couples later get divorced, the court first has to decide what assets are marital property. With same-sex couples, that is more difficult. Will only property you acquired while you were legally married count? If you have been together for decades, at what point will the court decide your assets became marital property? It’s sometimes a gray area that makes it difficult for partners who weren’t able to save as much for retirement because they took time away from their career to raise children. Or if a partner moved into a shared home years before the marriage officially began.

2. How the length of the marriage affects spousal support.

One of the main factors in determining the level of spousal support one spouse might receive is how long the marriage lasted. Again, because many same-sex couples were cohabitating long before they were allowed to marry, how will a judge view that? The decision could negatively affect a spouse who makes significantly less than their partner.

3. What legal rights each person has to the couple’s children.

Same-sex couples become parents in many different ways: through adoption, surrogacy or, for lesbian couples, using a sperm donor and having one partner carry the child. No matter what the avenue to parenthood was, it’s likely one spouse needed to legally adopt the child to establish their parental rights. If that didn’t happen and the couples later divorce, that parent without legal rights can have a difficult time getting custodial rights to the child. For couples facing that dilemma, seeking a collaborative divorce or divorce mediation might be a better option if you both want to maintain a relationship with your children.

If you are facing a divorce after a long-term same-sex relationship, you should seek out the advice of an experienced family law attorney. An attorney can help you navigate the challenges you face and help you advocate for a fair division of property or custody agreement based on your circumstances.

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