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Same-Sex Divorce Versus Same-Sex Separation

Same-Sex Divorce Versus Same-Sex Separation

December 19, 2019

By Johnson/Turner Legal

In 2015, the Supreme Court of the United States decided the landmark civil rights case of Obergefell v. Hodges, guaranteeing all Americans the Same sex couple arguingfundamental right to marriage, regardless of sexual orientation.  Following this decision, same-sex couples could now marry and have the same recognition of their legal relationship as that already enjoyed by heterosexual couples.  Unfortunately, with same-sex marriage also comes same-sex divorce.  As with heterosexual couples, a same-sex couple may elect to simply stay in a committed relationship and may choose to never marry.  There are some important differences between same sex divorce and same sex separation to be aware of before deciding which is the right path for you.

First, you should understand that a same-sex divorce will operate identically to that of a heterosexual divorce.  The same sex couple will have the right to ask for property division, debt division, and spousal maintenance.  If an adoption was completed during the marriage, the couple will need to also address issues of custody and visitation.  By contrast, if the parties were never married, there will not be any right to request spousal maintenance.  Moreover, property division can be quite complicated.  During a divorce, the parties have the right to ask for an equitable division of the marital property.  Conversely, during a separation when the parties were never married, they do not have an automatic property interest in the property acquired during the relationship.  Proving an interest in property, especially personal property like furniture, can be complicated and very challenging.

Same sex separation can also present unique challenges with regard to child custody and visitation.  If the parties were never married, they likely have never completed an adoption.  The complications often arise when one woman in the relationship is the biological mother.  Although the biological mother’s partner has likely functioned as the other parent sometimes even for years, without an adoption, the other partner does not have the automatic right to visitation or to request custody of the child.  This can also be a real problem during same sex divorces if an adoption was not completed by one of the parents.  There are ways to request visitation of the child for the parent who is not biologically related, but it is much more complicated than if an adoption had been completed during the marriage.

We have extensive experience with same sex divorce and separation.  Call us at (320) 299-4249 for a consultation to talk about your family.


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