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In 2014 Arizona legalized same-sex marriage and the nation followed in 2015. Before and since then, there has been a plethora of legislation passed to protect LBGTQ couples from discrimination seeking equal rights in both marriage and divorce. While a same-sex divorce is legally treated equally in Arizona, same sex couples may encounter unequal practices during the divorce process.  New situations are frequently being encountered.  When a marriage is dissolved, spouses will address the issues of property distribution, child custody and support, spousal support (also known as alimony), child visitation rights, and other related issues.

Legal matters in a same-sex divorce may be especially complicated. Even matters that may seem simple on the surface, such as marital property, can run into issues when there are no clearly defined guidelines to explain what should be included in a couple’s marital property and what should not.

Property & Finances

Just as in heterosexual divorce, property acquired by either spouse during a marriage is divided equally during a divorce.  However, the division of property, assets and debts may rely on the duration of the marriage and may not take into consideration a longer relationship that pre-dates a couple’s ability to legally marry and this can create a legal conundrum.  Sometimes mediation can work out these thornier issues based upon fairness when the law seems to work an unfair result.

Spousal Support

Same-sex couples are entitled to the same rights as heterosexual couples in terms of spousal support. Spousal maintenance (formerly known as alimony) is based on financial need and other factors. One significant factor is the duration of the marriage. That period of legal recognition is very short if counted only from the date that same-sex marriages became legal.  Again, in mediation these thornier issues can consider how long the parties lived together prior to marriage to determine what is fair.

Children

In cases of child custody, same-sex couples may encounter unique challenges compared to heterosexual couples. For example, in Arizona, there is no legal process for listing two mothers or two fathers on a birth certificate, so parentage for both same-sex spouses is not automatically established at birth.

In 2017 the Arizona supreme court ruled that when a child is born by artificial insemination to a woman during a same-sex marriage, the other spouse is presumed to be a parent. However, the same presumption of paternity does not automatically apply to male same-sex couples.

In a divorce or custody dispute, a biological parent is often favored for custody, so a nonbiological parent should pursue adoption to guard against denial of custody or visitation in a divorce.  This has been very painful for the non-biological parent who has done the majority of raising the children…and is extremely difficult to litigate.

When making important decisions about divorce, being well informed will help you receive fair treatment. Mediation or collaborative divorce, which allows the parties to resolve certain parts of the case without going through the court process, may be especially helpful when dealing with the complexities of same-sex marriage and divorce.

The many challenges make it crucial to choose a lawyer with experience in family law for LBGTQ people. Even if your divorce does not involve issues surrounding child custody or property division, it is always best to work with someone who is knowledgeable about the law and has your best interests in mind.

McMurdie Law & Mediation is dedicated to helping develop resolutions that are healthy and beneficial to all parties. Call McMurdie Law & Mediation at 480-777-5500 today to schedule a consultation.


Since 1995, McMurdie Law & Mediation, a Tempe, AZ Family Law practice, has provided expert conflict resolution, mediation, collaborative representation, full representation and limited scope representation for your family law cases.