Same-Sex Divorce: Layered with Issues

close up of happy male gay couple holding handsSame sex couples have only recently, and only in some states, been given the right to marry.  With the right to marry, unfortunately, often comes the right to divorce.   For those attorneys and parties who have tried to navigate same-sex divorces, many issues arise which include issues not always seen in heterosexual divorces.

The first issue that might arise in a same-sex divorce is: What is the date of marriage?  Since states have granted the right for same-sex couples to marry on different dates, some states might disagree on the determination of a couple’s actual date of marriage depending on where the couple was married.  This issue might also arise if a couple is residing in a state that recognizes common law marriage (note: Wisconsin does not recognize common law marriage).  The date of marriage (i.e. length of marriage) is important when addressing issues regarding support.

On this topic, many same-sex couples are together for years before they were able to get legally married.  These couples considered themselves “married” long before they were legally married, which included  commingling their assets.  Regardless, there is a question as to whether or not such couples should get “credit” for the time spend together in a marriage-like relationship before legally married.  Most courts will only divide assets starting from the time a couple actually got married.  This can create a lot of inequality and unanswered issues for these couples.

A related issue is also whether or not a couple even has a valid marriage and if a court can even grant a Judgment of Divorce.  Since some same-sex couples traveled outside of their home state or U.S. to be married, their marriage may not be valid.  In this case, a Judgment of Divorce might not be appropriate.

If children are involved, a same-sex divorce can becomes even more complicated depending on when the children were born.  Children born during a marriage are considered marital children.  In many same-sex marriages, you might have children born prior to a legal marriage who are considered by their parents to be ‘marital children,’ but not in the eyes of Wisconsin law.  For same-sex couples whose children were not born during a legal marriage, either one or both of the parents are not the biological parent of the child.  This presents several questions for the court.  For example, if the child is not biological, have both of the parents legally adopted the child?   If only one parent is biological, does that parent have all the rights?  These questions are perplexing to the court, to the parents and to the children.

Same-sex couples are also running into issues when they try to get divorced in states other than the state where they were legally married.  States that do not recognize same-sex marriages typically will not grant a same-sex divorce, as the state views the marriage as unlawful from the start.  Therefore, the same-sex couple, or at least one of the spouses, must return to the state where they got married.  Many states, like Wisconsin, require at least a six-month minimum residency requirement for anyone who wants to petition for divorce, so this creates more delay and financial burdens for these couples.

Clearly, same-sex divorce is not a well-defined area of law.  This means that the courts, court officials and attorneys are lacking clear answers on what courts are required to do, or should consider, when making divorce related decisions for these couples.  Therefore, many courts are requiring attorneys to do additional research and file briefs to point the court in the right direction.  Since there is additional work that is often required, not only are delays very common, but same-sex couples might pay more in attorney fees to be divorced.

More issues than the above may arise during a same-sex divorce proceeding, and it is important that you choose an attorney who is willing and able to navigate you through this relatively new and developing area of family law.   If you facing this difficult situation, call us at 414-258-1644 to schedule a free initial consultation to discuss your case.