In June of 2015, the U.S. Supreme Court handed down the landmark decision in Obergefell v. Hodges that granted marriage equality to all, allowing same-sex couples to legally marry across the nation. At the time, only 13 states still banned these unions, but the ruling also provided federal-level legislation. This offered same-sex spouses access to tax advantages, medical benefits and some employee options that had previously been denied them.
Three years later, many of these couples are now dealing with the break-up of their relationships and learning that they still face obstacles that heterosexual spouses don’t necessarily deal with when filing for divorce. Chief among them are issues with division of property, spousal support/alimonyand child custody/support.
Property Division and Spousal Support
Asset and property division for divorcing spouses is often a contentious issue. When the two parties cannot come to an agreement, it usually falls to the courts to make the final determination. An important factor in this decision is how long the marriage lasted. For LGBTQ spouses, the actual length of time that the couple has been married doesn’t necessarily reflect how long they’ve been in a committed relationship.
A divorcing same-sex couple may have been together for 10 or 20 years prior to the 2015 S.C. decision that allowed them to marry. But, “on paper” their union is only three years old. In some states, the courts don’t consider the many years the couple was together before they entered their federally approved union. When there’s a big difference in earnings and assets, this can be financially detrimental for the lower-earning spouse.
Child Custody and Child Support
When children are a factor, assigning support obligations, parental rights, custody and visitation may be another thorny issue for divorcing same-sex couples. Courts must determine whether there is a legal parental bond between the children and both parties in the marriage. If the non-biological parent hasn’t taken steps to establish a legitimate parental relationship, things could get complicated.
The Good News
While some LGBTQ couples seeking divorce may face these unique challenges, their situation has improved since the Obergefell decision. Same-sex spouses now have access to divorce courts across the U.S.
Prior to the landmark ruling, states that prohibited LGBTQ couples from marrying didn’t recognize out-of-state same sex marriages and therefore, their courts didn’t provide divorces for these unions. Additionally, even for those states that had enacted legislation for gay couples to marry, the laws varied from one state to the next.
Same-sex couples are now on more even footing when dissolving their union. At Mejias Milgrim Alvarado, P.C., our knowledgeable Family Law attorneys are available to guide you through the divorce process in New York. Contact us to schedule a consultation and discuss your needs.
David Mejias is a Long Island attorney specializing in family law and divorce. He is a managing partner at Mejias, Milgrim & Alvarado where he has practiced law for 18 years. He currently serves as the Chairman of the Long Island Hispanic Bar Foundation, the charitable branch of the Long Island Hispanic Bar Association where he has previously served as President. In 2003, Dave Mejias became the first Latino elected to the Nassau County Legislature, where he served from 2004 to 2010.