Same Sex Divorce | Child Custody

In June 2015, the United States Supreme Court issued a ruling that legalized same sex marriage in all 50 states. Of course, along with this ruling, comes the issue of how to handle same sex divorce.

The Logistics of Same Sex Marriage

Many couples who lived in states where gay marriage was banned or not recognized went to states where it was legal to tie the knot. Like any marriages, some did not last. Couples in this situation found same sex divorce to be just as challenging, if not more so. They couldn’t divorce in their own state because their marriage was not recognized. And, just going back to the state where they were married was often not enough. In many cases residency requirements were in place for divorce, which meant moving. Some couples could handle the adjustment to their lives, but others could not. Faced with too many legal hoops, several couples gave up and just decided to live apart while remaining married. When the ruling was issued in June, many were hopeful that they could then move forward with same sex divorce.

Even with the ruling, there has been some ambiguity on how to define the length of marriage. Should the marriage clock begin from their original vows, when the marriage was recognized in their own state, or when it was considered valid nation wide? There are many decisions made in divorce, including the amount of spousal support or even the right to a portion of retirement funds, where length of marriage is factored in, so this becomes a very important question.

Confusion Over Child Custody

Deciding child custody in a same sex divorce can also be very confusing. Same sex parents become parents in different ways, Sometimes the child is biologically related to one of the persons, and the other person adopts the child. The child might also be adopted by just one person due to regulations an adoption agency may have had against same sex adoption. For some, this decision is made with the intent of the other person to adopt the child later, which may or may not have occurred before the couple decided to divorce. Both persons may have stepped into a parental role, but the actual issue of legal parentage remains ambiguous. The parent who hasn’t been legally tied to the child ends up in a step parent type of role legally, and may have a more uphill battle to remain in the child’s life. The best interest of the child is still the goal, but the idea of what is best can easily become clouded due to the situation.

May, Potenza, Baran & Gillespie, P.C. has experience in a variety of family law matters including same sex marriage and divorce, and can help you navigate through any questions you may have. Contact us to set up a consultation.