In the realm of same-sex divorce, critical issues such as property division, legal decision-making, parenting time, child support, and spousal maintenance may become particularly complex due to unique factors associated with same-sex relationships. These considerations might include extended periods of cohabitation prior to legal marriage, child custody challenges involving non-biological parents, and the dynamics of a pre-existing relationship that might impact the equitable division of assets.
By understanding the intricacies of same-sex divorce, you can approach the proceedings with greater confidence, expertly prioritizing the welfare of all involved parties and ensuring a fair, equitable resolution.
Unique Challenges in Same-Sex Divorce Proceedings
While same-sex divorces legally follow the same principles as heterosexual divorces, they often involve distinctive challenges and complexities:
- Pre-Marriage Cohabitation: Many same-sex couples may have had a long-term, committed relationship before the legalization of same-sex marriage, leading to difficulties in identifying and dividing marital property during divorce proceedings. Mediation can sometimes help couples come to an agreement based upon fairness when the law does not consider a longer relationship that pre-dates a couple’s ability to legally marry.
Child Custody and Parenting Time: Same-sex couples may face unique challenges in establishing legal decision-making and parenting time, particularly when one partner is not the biological parent of the child. 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. This can create a very painful situation for the non-biological parent who has done the majority of raising the children, and it is extremely difficult to litigate. It would be important to consider this scenario before it arises, while there remains agreement and mutuality between parties and can be memorialized in guardianship documents, a post-nuptial agreement or adoption.
A 2017 Arizona Supreme Court ruling decided 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. As you can see, this can become heavily fact-intensive and confusing if disputes arise with regard to legal decision making (legal custody) and parenting time (physical custody.)
In a divorce or custody dispute, a biological parent is often favored for custody, so a nonbiological parent should pursue adoption as the surest legal step in protecting their rights of custody or visitation in a divorce.
- Spousal Maintenance: Same-sex couples are entitled to the same rights as heterosexual couples in terms of spousal support. However, determining spousal maintenance in a same-sex divorce may be complicated by factors such as the length of the relationship before legal recognition or the unequal distribution of financial resources during the pre-marriage period. These are terms to solidify in a pre or post-nuptial agreement.
- Jurisdictional Issues: If a same-sex couple was married in another state or country, jurisdictional challenges may arise when seeking a divorce in Arizona, depending on residency requirements and legal recognition of the foreign marriage. Arizona recognizes legal marriages in the other States of America.
Promoting Equality and Fairness
Your commitment to equality and fairness in same-sex divorce proceedings may safeguard your rights and achieve favorable outcomes however it is best to use legal processes to ensure your rights as set forth above.
- Open Communication: Maintaining transparent communication with your former spouse throughout the divorce process can help facilitate a more amicable resolution and streamline negotiations.
- Respectful Negotiation: Approaching negotiations with a focus on fairness and equity can pave the way for productive discussions, benefiting all parties involved.
- Prioritize the Child’s Best Interests: In any divorce involving children, keeping the child’s best interests at the heart of all discussions and decisions is crucial, regardless of the parent’s sexual orientation.
- Consult an Experienced Attorney: Partnering with a skilled and compassionate family law attorney like McMurdie Law & Mediation can help ensure that your rights are protected throughout the divorce process and that equality and fairness prevail.
Same-sex divorces in Arizona requires an understanding of the unique challenges and complexities that may arise in the process. By partnering with an experienced family law attorney like McMurdie Law & Mediation, you can expertly move through each step of the same-sex divorce process, ensuring your rights are protected, and a fair, equitable resolution is achieved.
Don’t face the challenges of same-sex divorce in Tempe, AZ, alone. Contact McMurdie Law & Mediation today to expertly guide you through each aspect of your divorce while prioritizing fairness, equality, and compassion. Schedule a consultation with McMurdie Law & Mediation to discuss your same-sex divorce case.