Now that same-sex marriage has been legal in California for several years, some LGBTQ couples who got married are filing for divorce. Same-sex couples face the same challenges in marriage as any other married couple – and perhaps more. Unfortunately, they face the same challenges as opposite-sex couples in divorce – and perhaps more.
The following are some examples of unique issues that LGBTQ couples can face in divorce. If you are considering divorce, you should not hesitate to seek help from a California divorce attorney who represents LGBTQ spouses.
Just like other married parents, LGBTQ parents will need to address child-related issues as part of their divorce cases. While the standard for custody is the same for all parents and children – based on the best interests of the child – there are different issues that can arise for one or both LGBTQ parents.
For many same-sex parents, one parent is the biological parent of a child, and the other is not. The non-biological parent may have raised the child from birth, and they might assume that they have all the same parental rights as the biological parent. However, this is not always the case.
Too often, the non-biological parent might not take steps to establish legal parentage, as they assume the family will stay together and the biological parent will honor the relationship with the child even if they split up. This can set a non-biological parent up for a huge disappointment, as it can be highly challenging to obtain any custody rights if they are not a legal parent. This can include:
- Physical custody (time-sharing)
- Legal custody (decision-making)
If you are in a same-sex marriage and you did not seek legal parentage of your child, you should discuss an adoption with an attorney. This is the case whether you believe divorce might be in your future or not. If you never adopt the child, you can easily lose all rights to see or have a relationship with the child in the future following a divorce.
While the non-biological parent might have concerns over custody rights, the biological parent might worry about the financial support of the child if their spouse never adopted the child. You cannot demand child support from someone who is not a child’s legal parent, so this is another reason why both parents might be incentivized to complete an adoption.
If an adoption took place and both spouses are the legal parents of a child, they will still need to resolve child custody and support matters. These child-related issues should be resolved just like a divorce between opposite-sex parents. If you can agree with each other out of court, your attorney can write up your agreement and present it to the family judge. If you cannot agree, the matter will be left for the judge to decide.
Child support between two legal same-sex parents will also be determined according to the same formula used for opposite-sex parents.
Child custody and support are not the only issues that can be stressful for divorcing LGBTQ spouses, as financial matters can also be more complicated than for opposite-sex couples.
Same-sex marriage was legally recognized in California in 2013 – and nationally in 2015 – and many LGBTQ couples happily tied the knot, some after decades spent together. The fact that many couples were together for years prior to marriage can complicate the issue of property division.
California divides all community property in a divorce, which is the property that spouses acquire together during the marriage. The law does not require spouses to distribute property that one spouse brought into the marriage separately (though any appreciated value during the marriage can be community property).
If an LGBTQ couple was together for years, they likely built up property and assets together, though each spouse’s share might not be protected under the law prior to the marriage. Depending on how property, assets, or debts are titled, one spouse could be left with much less than they would deserve had the marriage occurred a long time ago.
One solution is to decide out of court how to divide the property. While a court will not divide separate property, spouses can agree to do so – even if it is not required by law. Always discuss these options with an experienced attorney prior to filing for divorce.
Spousal support – also called alimony or maintenance – is a major issue in many divorce cases. If one spouse earns significantly more than the other, and will be in a much better financial position following a divorce, then they might be ordered to provide financial support to the other spouse until they can get on their own feet.
Spousal support determinations take many factors into consideration, including the length of the marriage. Often, the duration of spousal support will be limited to half of the length of the marriage or less. This can cause problems for LGBTQ spouses who have only been married for eight years or less.
Consider the following scenario, which is common in LGBTQ divorces:
- Two LGBTQ partners were living together in a committed relationship for 30 years.
- One partner earned a high income, so the other partner decided to forego a career to care for a child and the household.
- The couple got married in 2013 and has been married for eight years.
- Even though they have been living together and one partner supported the other for 30 years, the court might only consider the eight years of the marriage.
- Spousal support might be limited to four years – even though the non-working spouse has been out of the workforce for three decades and might not be able to find suitable employment.
This is another issue that can be unique to many LGBTQ divorce cases, and it is another reason why you want to have the right divorce attorney representing you and your rights in your LGBTQ divorce.