Berman & Asbel, LLP

Same-sex couples and divorce: Creating legal documents could help

Gaining the ability to marry someone they love has been a long road for many same-sex couples. As more states are recognizing and legalizing same-sex unions, the statistics and issues concerning same-sex couples and divorce are coming to the forefront. While couples may marry in a state that recognizes their union, if they later decide to separate and live in a state that does not consider their marriage legal, they could face difficulties in gaining the ability to divorce and face hurtles dealing with other separation issues.

Property division can become a point of contention in states, such as Pennsylvania, where same-sex marriage is not considered legal and in states where it was only recently legalized. Many couples may have lived together for extended periods of time before being able to marry, and as a result, acquired much of their property jointly. However, because they were not married at the time, the assets may not be considered joint property in terms of division laws. Having a prenuptial agreement could help bypass this issue.

Child custody can also prove difficult to navigate. If one partner is a biological parent to the child and the other is not, the non-biological parent may have a hard time establishing parental rights. Even if both partners' names are on a birth certificate, if the non-biological parent did not legally adopt the child, gaining any type of custody may seem impossible.

It is important for Pennsylvania residents concerned with same-sex couples and divorce to understand that prenuptial agreements and adoptions are recognized by states that have not legalized same-sex marriage. Establishing these legal documents can potentially save time and money should a couple decide to separate. Because this issue is still being handled differently on state levels, it is important to gain knowledge on state laws to determine what issues a couple could face during separation.

Source: NBC News, Gay divorce: It may not be as easy as the marriage, Judith Messina, Oct. 16, 2013

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