Berman & Asbel, LLP

How same-sex divorces may be different

While the momentous U.S. Supreme Court decision in June 2015 guaranteed that same-sex couples in Pennsylvania and across the country would be able to marry, the ability for these individuals to divorce is unchartered legal territory. The decision brought about speculation as to how a divorce between same-sex partners would be different than one for opposite-sex couples.

Although property division rules would seem to work the same regardless of sexual orientation, other aspects of divorce may be more complicated. For example, same-sex couples go about having children in a different manner, so the current laws may not be equipped to make these determinations. Only one parent in a same-sex couple may be the biological parent of the child, which can lead to complex legal issues. Courts will have to grapple with how to deal with child custody situations when a sperm donor or egg donor is used and how the biological connection between one but not both parents will affect the legal case.

Another legal issue for same-sex partners is the divorce process itself. Some states had laws that prohibited a family court from issuing a divorce for a same-sex couple because the matrimony was not previously recognized under state law, but those will no longer be valid. Additionally, it is not yet clear which of the federal privileges gay couples will be entitled to and when these benefits will become available. States are required by the U.S. Supreme Court decision to treat same-sex couples in the same manner as opposite-sex couples, but it will take them time to adjust to the decision and complete the logistical aspects of the establishment of new rules.

A same-sex spouse who is contemplating a divorce may want to discuss the legal issues that may arise with a family law attorney who has experience with LGBT issues. Legal counsel may be able to explain any complications that may arise and the arguments that can be made in court on the client's behalf.

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