Same-Sex Divorce and Unique Issues

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Same-Sex Divorce and Unique Issues

When the opinion in Obergefell v. Hodges was handed down by the Supreme Court in June of 2015 legalizing same-sex partnerships in all 50 states and the District of Columbia, it also solidified June as Pride Month for LGBTQ + individuals.  With marriage equality, a new segment of the population could finally get married and join legally recognized intimate partnerships. 

But every silver lining has a touch of grey.  Where there is marriage, there is also divorce.  Whether we like it or not, it is inevitable that some relationships fall apart, and in Maryland, the Circuit Courts are charged with deciding divorce, custody and support of the children.  There are a lot of complex legal issues that arise with same-sex divorce, custody, and support.  A lot of presumptions in opposite sex marriages become muddled in same-sex divorce.  Except for the most amicable separations, divorcing your same sex spouse requires the assistance of an experienced divorce attorney.

Premarital Agreements – Pre Nups

One of the first things that a marrying partner should consider after deciding to “tie-the-knot” and where to hold the reception is whether they should get a premarital agreement – often referred to as a “prenup” or “prenuptial agreement.”  These contracts define how property will be divided in case the marriage ends up in a divorce.  

Not every couple needs a prenuptial agreement, however, same-sex couples may want to consider a premarital agreement more thoroughly.  Why?  The law is still relatively new when it comes to dissolution of same-sex partnerships, a lot of the results are less than predictable.  It is worth consideration whether to have a premarital agreement to settle these issues in advance.  Same-sex divorces, like all contested divorces, are a lot more expensive when the property issues are not pre-determined in a prenuptial agreement.  Moreover, most people would rather determine the division of their own assets rather than leave it up to a stranger who knows nothing about you other than what he or she can glean about you during a hotly contested divorce trial.  Of course, prenuptial agreements in same-sex divorces are construed just as opposite-sex agreements.  But for same-sex couples there are situations that are unique and do not often come up in opposite-sex marriages and divorces.  

Same-sex couples face unique challenges in custody battles

Custody matters are already complex and confusing.  It isn’t always clear what presumptions, standards, and even factors will weigh on a judge’s mind.  Judges, like everyone else, are unique individuals and you are never sure who you end up with. 

Depending on how the minor children came of the marriage will greatly impact the custody disputes.  For example, if a same-sex couple adopts a child, generally courts should not have any problems applying the “best interests of the child” standard since both parents are legally the adopted parents.

However, in a situation, such as a same-sex couple between two women, where one mother gives birth, the law could recognize that biological mother has more rights because she is the natural mother.  This could lead to patently unfair results, and lead to unbeatable claims.  You should definitely take pro-active steps, including legal adoption, if you are the non-biological parent.

The law for opposite-sex marriages

When it comes to opposite-sex marriages, the Supreme Court has heard the issue of what happens to natural rights of a parent versus a married couple.  In Michael H. v. Gerald D., the Court held that there is a valid presumption that if a child is born to a married couple, the child is viewed as the husband’s child.  Basically, there is a presumption that the husband in a marriage is the father of the child.

However, this gets nuanced and complicated when it applies to same-sex couples. Does this presumption apply in same-sex marriages?  Does this apply to women?  In the previous example where two women are married and the natural father seeks rights, is there that same presumption that the married couple are both the parents to the child?  There is no clear answer, and it is hard to say when, if there ever there will be.

Work with the right experts

Not every lawyer is experienced with LGBTQ + issues.  If you and your family are going through a divorce, you owe it to yourself to find the right lawyer.  Not only can Malech Law  help you with your unique situation, but Lloyd Malech can help steer you towards the right counselors, coaches, or mental health providers who specialize in same-sex couples and same-sex family therapy.  Let Malech Law help you go over your options.

Guest Blogger: Edmund “Eddie” Pittman, Malech Law – Law Clerk

About The Author

Lloyd A. Malech
Malech Law is located in downtown Bethesda, Maryland. For more than 25 years, Mr. Malech has provided aggressive and effective representation for his clients in Maryland and the District of Columbia. He has been honored with the Lawyers of Distinction Award Recognizing Excellence in the Area of Divorce and Family Law for the past three consecutive years and has just been recognized as a Family Law Top 10 Attorney for 2021 by “Attorney and Practice Magazine.” Visit Malechlaw.com or call (202) 441-2107

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