Unique Differences and Challenges in Same-Sex Divorce

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In 2015, the United States Supreme Court made same-sex marriage legal in all 50 states in its holding in Obergefell v. Hodges, 135 S. Ct. 2584. This monumental decision granted all LGBTQ+ individuals the same privileges as heterosexual couples. Some of these benefits include tax exemptions, Social Security, and insurance advantages.

At the time Obergefell came out, 13 states banned LGBTQ+ marriage, forcing couples to travel to other states or countries if they wished to obtain a divorce. Despite same-sex marriage being legal in all 50 states, LGBTQ+ couples often face unique differences and challenges when going through the divorce process.

Determining When the Marriage Began

One of the biggest challenges same-sex divorce couples face is determining when the marriage actually began. Colorado is one of the few remaining states that recognizes common law marriage. This can bring complications when a couple has been together and cohabitating for years but did not officially get married until it was legal. The duration of the marriage will dictate whether spousal maintenance should be granted and how the couple’s marital estate will be divided.

Determining Custody, Parenting Time, & Child Support

Another challenge that same-sex divorcees face is issues regarding custody, parenting time, and child support. Under Colorado law, there is a presumption that a child born during the marriage is a child of the marriage. However, the timing of the marriage, as referenced above, may lead to complications in this area for same-sex couples. Increasingly common, in same-sex couples and otherwise, are instances where children are adopted or conceived via surrogacy, through IVF, or otherwise.

Another common scenario is in a same-sex female couple, where one partner’s egg is fertilized through IVF and the embryo is then transferred to the other partner to carry the child to term.

Of the many ways that same-sex couples may choose to grow their family, it is important to know that precautions must be taken to protect each parent’s rights and understand that the law has not entirely caught up with the commonality of these methods and scenarios. Upon divorce, some parents may find that their parental rights are not what they believed them to be. For example, if one parent in a same-sex marriage adopts a child or is a biological parent while the other does not/is not, the latter parent may face challenges and disadvantages when addressing issues of parenting time, decision-making, and child support in a divorce.

When It’s Time to Involve an Attorney, You Can Trust Solutions Based Family Law

Same-sex couple divorces and the scenarios addressed here can create an added layer of complexity in resolving a divorce. It is important to have legal counsel that is familiar with the issues that arise in LGBTQ+ divorces to guide you if these challenges arise.

At Solutions Based Family Law, we believe in making the law inclusive for all, and we have dedicated an entire arm of our legal practice specifically to non-traditional family law services. As you navigate the process of a same-sex divorce and the complications that come with it, we will be right by your side providing the professional guidance and unwavering advocacy you deserve.

To learn more, schedule an appointment by calling us at (720) 463-2232. To reach us online, submit a contact form here.

*This blog was written as general information and should not be considered legal advice or solicitation for services.

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