Same Sex Marriage

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Same sex marriage and legalized marijuana use have been a hot topic in the news lately. There has been a lot of celebration surrounding the legal changes that have been approved by voters and/or handed down by the Supreme Court, but what may have been forgotten during the celebration is that just because one law changes doesn’t mean that all the laws corresponding with and relating to the changed law are automatically adjusted as well.

Currently, more is publicly known and understood about the conditions that accompany the changes to the drug laws but without a thorough understanding of them, one can encounter a myriad of legal problems. The same is true for a same sex couple should they decide to end their newly legalized marriage.

Just as marijuana users might incorrectly assume that the laws that apply to tobacco users apply to them in the same way, a same sex couple might assume that all laws that apply to heterosexual couples apply to them in every aspect of marriage.

Though it is now as easy for a same sex couple to wed as it is for a heterosexual couple, obtaining a divorce may be more complicated as the other laws pertaining to marriage catch up.

Granted, not being aware of those nuances probably won’t land you in jail like they will with pot, but it can be costly and more annoying than 20 trips to the DMV. The laws pertaining to those areas are currently a bit murky.

Obtaining a same sex marriage follows the same process as all other marriages after the U.S. Supreme Court’s 2015 ruling in Obergfell v. Hodges legalizing same-sex marriage nationwide. Prior to that ruling, the since overruled Defense of Marriage Act (DOMA), didn’t require any state to recognize same-sex marriages from other states.

States that didn’t allow same-sex marriage could choose not to recognize those that were performed in other states as valid marriages. Therefore, even if a same-sex couple met the residency requirement for divorce, they could be denied a divorce if they resided in a state that didn’t recognize that type of marriage.

This was a significant problem because many non-resident gay couples would flock to states that legalized same sex marriage early on to participate in a ceremony that ultimately was more ceremonial than legal. In addition, states that chose to not recognize same-sex marriage generally refused to enforce same-sex divorce judgments against their residents as well.

Court orders (including support orders) were often unenforceable across state lines if, for example, an ex-spouse moved to a state that didn’t recognize same-sex marriage. Initially, the work around was to petition for divorce in a state that recognized same sex marriages because they would generally grant a divorce without imposing residency requirements upon a couple.

The Obergefell decision, which protects marriage equality at the federal level, also requires states to recognize valid same-sex marriages performed in other states.

The problem is, there are still quite a few details to be ironed out and this is where retaining experienced counsel becomes critical. A very common issue that has arisen is that many same-sex couples who did not have access to legal marriage opted for civil unions or domestic partnerships.

While civil unions and domestic partnerships are legally similar to marriage, not all states recognize these arrangements and as a result may not be able to dissolve them should the need arise. Couples who entered into civil unions in Delaware and Rhode Island, however, are legally considered married because civil unions in those states were converted to marriages in 2013.

It’s important to refer to your state’s laws because each situation is unique. Those in civil unions, for example, may need to establish residency in the state where the union was performed in order to dissolve the relationship. If you were legally married though, you may now get divorced in any state.

Custody is an extremely important area of concern in a same sex divorce. If you and your ex partner share custody then this concern needs to be addressed. The Huffington Post put together a list of five critical “Must Do’s” to help:

  1. Know the law in your state regarding custody and support. Do non-relative third parties or grandparents have the ability to sue for custody of your children? Each state has its own laws regarding each of these topics. Other states are beginning to embrace these changes or may be silent on the issues altogether. 
    While the federal law has changed for same-sex couples, as it relates to benefit availability, laws regarding custody, support and adoption have not yet all followed suit. You can find many legal resources online, including a number of legal blogs, but those cannot fully replace an informative consultation to get these questions answered.
  1. Choose an experienced attorney who you trust. While lawyers are sometimes considered luxuries, when it comes to the complexities of same-sex families, it is important to consult with a lawyer who concentrates in the area of family law and has an understanding as to the same-sex laws in your state. Your lawyer can give you a strong education about the law in your state and how the laws apply to your particular circumstances.
    You may not need to hire the lawyer beyond the consultation but make sure that you get a foundation of information so that you can make informed decisions for you and your children. Access your local or state bar organization for help and for referrals.
  1. Review agreements, if any. For whatever reason, even though the law is unsettled on various same-sex issues, many same-sex couples do not look beyond their vows when creating a family.
    Did you sign an agreement or other contract during your marriage that established parenting routines and responsibilities?
    Do you have any estate-planning documents that establish intention as it relates to the care of and support for your minor children?
    If not, please know that you could have done so, and that there is plenty of authority that would support its enforceability. Take heart — regardless of your relationship status, you may create estate-planning documents and trust documents to protect your children’s future and their ability to inherit from you.
  1. Don’t change your routine with the children because your partner tells you to. Intention, routine and previous responsibility weighs heavy in the court’s eye. If you want to preserve your relationships with your children beyond your separation, don’t walk away because your partner says you don’t have rights.
    A biologically linked parent is not presumed to be the favored parent or the one that will automatically prevail in a courtroom. Understand what those legal rights are immediately and make sure to stay a part of the children’s lives accordingly. Unilaterally changing the parenting routine and then asking for it to resume months later through the court system often affects your credibility.
    For example, if you moved from the marital residence and visited infrequently with the children, the court may assume that you thought it was in their best interests to live primarily with the other parent. Or, if it was not until the primary parent began dating again that you decided you wanted the children back in your care, your desires may carry less credibility and instead may come across as the scorned former partner. Dating is not usually grounds to modify a parenting schedule. Make decisions based on knowledge and information not emotion.
  1. Understand your child support calculation. You may begin by gathering financial information. Most states require documentation on your gross monthly income as well as expenses related to the children’s health insurance premiums, work-related childcare expenses, extraordinary expenses or other extracurricular activities.
    The legislature in most states has created a “guideline” calculation that is used to determine an amount of support that should be paid considering the children’s accustomed standard of living, each parent’s proportionate responsibility, obligations for other children and more. If your incomes are beyond the guidelines or, better yet, there is an opportunity to negotiate a different amount of support, consider it.
    There may be a chance to pay expenses directly to a provider or to share in expenses rather than pay direct support. Remember that most states will not allow you to “waive” child support obligations and can order that child support payments be paid retroactively for missed support.

Regardless of your sexual orientation, ending a relationship with someone you love, legal or otherwise, is traumatic and stressful. Emotions can often take over that lead to poor decisions. In the interest of coming through the experience with the best possible outcome and with the least amount of emotional damage, the guidance of an attorney who knows the path and has experience with the laws can be the difference between moving on or standing still.

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