Many California communities embrace a more progressive way of life, which includes breaking the chains of traditional gender roles. This is evident in marriage, primarily same-sex marriages. These unions are often more egalitarian than conventional opposite-sex marriages since work can’t be divided in accordance with traditional gender roles. However, this isn’t the magic potion to making a marriage last forever. LGBTQ couples face divorce, just as same-sex couples do. While they often report being happier in relationships, some of their marriages still end in divorce. Even still, their divorces can be quite different from those in heterosexual marriages.
Common Cohabitation Before Marriage
LGBTQ relationships often involve cohabitation before marriage. Even for straight couples that co-habitat, their period of cohabitation is typically less than what same-sex couples experience. This can serve to complicate divorce in ways that traditional relationships don’t experience. For example, the longer a couple lives together before getting married, the more assets they can accumulate before they are legally married. As a result, asset division can be more complicated during an LGBTQ divorce than a heterosexual divorce. It can be difficult to determine who owned what property at the time the couple began to co-habitat or were married. However, LGBTQ couples can help prevent this issue by using a pre-or post-nuptial agreement.
Since both same-sex partners can’t each be biologically related to their children, child custody issues in a divorce can be more complicated than traditional divorces. Sadly, some LGBTQ parents stand to lose out on time and continued relationships with their children. The root of the problem is that the non-biological LGBTQ parent must adopt children in order for that parent to be eligible for custody. For example, if a same-sex couple was together for quite some time before they were legally married, the non-biological parent may not have legally adopted their children.
Without a biological or adoptive connection to the child, California family courts are often unlikely to grant any custody orders in favor of the biological parents’ soon-to-be ex-spouse. Suppose that parent doesn’t have an amicable relationship with the soon-to-be ex-spouse. In that case, their relationship with children could be limited at best or cut off at worst. LGBTQ parents can proactively ensure this doesn’t happen by adopting their partner’s biological children. This way, the court will consider them both equally responsible and privileged when it comes to the couple’s children.
Both parents are the biological or adoptive parents in most traditional marriages and are listed on the child’s birth certificate. This alone makes them both eligible for custody should the marriage end.
In the same way, if the court doesn’t consider one spouse as a legal parent, they won’t be obligated to pay child support. This could be detrimental to the biological parent. They may be left raising their children that they gave birth to while in this relationship on their own with no support from their ex-spouse. Since the ex-spouse is biologically or adoptively responsible for the children, the other parent generally doesn’t have much recourse other than to hope their ex-spouse decides to help out of the goodness of their heart.
In heterosexual marriages, the court considers each parent responsible for the continued health and well-being of the children. However, no parent can automatically escape the responsibility of child support, as could happen in an LGBTQ divorce. However, same-sex parents can avoid this predicament by ensuring the non-biological parent legally adopts the children.
Thankfully, family courts today are doing away with traditional gender roles. Previously, courts would have awarded alimony to the wife, leaving the husband responsible for paying it. However, today, most courts look at many factors when awarding and determining spousal maintenance and support, none of which are gender-related. For example, courts consider factors such as:
- How long the couple was married
- If one partner stayed home to raise the children
- If one partner went to school during the marriage to obtain a better paying position
- Individual contributions to the marriage
- Tax consequences
- The standard of living during the marriage
- Future parenting responsibilities
Because courts don’t take gender into account, most divorcing same-sex couples will have nearly the same experience and restrictions as divorcing heterosexual couples when it comes to paying or receiving alimony.
Seek the Legal Help You Need
Divorce is hard, no matter what type of marriage you are in. However, it is often more challenging for LGBTQ couples due to the above-referenced matters. It’s imperative for these couples to have sound legal advice and representation. If you are facing a same-sex divorce, don’t hesitate to get the legal help you need from a seasoned California LGBTQ divorce attorney.