The Potential Challenges in an LGBTQ Divorce

Posted on May 28, 2024 10:49am
The Potential Challenges in an LGBTQ Divorce

The fight for marriage equality was a hard-won victory for the LGBTQ+ community. However, the legal landscape surrounding divorce for same-sex couples can still be a minefield. While the core issues of emotional turmoil and financial disentanglement remain similar to opposite-sex divorces, LGBTQ+ couples face unique challenges during the divorce process. In this blog, we will discuss those specific challenges in further detail.

Child Custody & Same-Sex Divorce

Same-sex couples have many options and possibilities when it comes to starting a family, including in vitro fertilization (IVF), insemination, gestational surrogacy, and adoption.

Child custody and parentage can be a unique challenge in an LGTBQ divorce. Unlike opposite-sex couples, where paternity is often presumed, same-sex couples often require legal steps to establish parental rights for both partners.

Parentage can be established through various methods, including:

  • Second-parent adoption: In a family where one spouse is the biological parent and the other is not, a second-parent adoption grants the non-biological parent full legal rights and responsibilities.
  • Pre-birth agreements: These agreements clarify parental roles before a child's birth.
  • Surrogacy contracts: These contracts establish parentage for intended parents.

Without established parentage, a non-biological parent may face difficulties securing custody rights during a divorce. Once parentage is established, child custody arrangements in same-sex divorces follow similar principles as opposite-sex couples.

The court prioritizes the child's best interests, considering factors like:

  • The child's emotional and physical needs
  • Each parent's parenting ability
  • The child's existing relationship with each parent
  • The stability of each parent's home environment

The Importance Of Second-Parent Adoption

In situations where only one partner is biologically linked to the child (through sperm donation or their own egg and a surrogate), the other partner may not have automatic legal parental rights. This is where second-parent adoption becomes crucial. It establishes a legal parent-child relationship between the non-biological parent and the child.

In addition to providing parents with rights and protections during a divorce, second-parent adoption can also be beneficial as it relates to:

  • Legal protection. It ensures both parents have equal rights and responsibilities regarding the child's upbringing, healthcare, education, and future inheritance.
  • Decision-making authority. In case of emergencies or the biological parent's absence, the second-parent adoption ensures the child's well-being is protected.
  • Emotional security. It provides a strong legal foundation for the parent-child bond and fosters a sense of security for both the child and the non-biological parent.

Property Division & Decades-Long Marriages

Dividing assets when a couple has been together for decades can be challenging. Same-sex couples may experience added complications.

Washington state recognized same-sex marriage in 2012, and nationally, it was legally recognized in 2015. For same-sex couples who may have been together for decades before marriage was an option, this can raise unique challenges. Consider a couple who cohabitated for 15 years before marrying and were legally married for 10. Distinguishing between premarital and marital property can be difficult, especially if finances were commingled throughout the entire relationship.

Spousal Support

In Washington state, the courts will consider ordering spousal maintenance based on the requesting spouse’s need and the other spouse’s financial capacity to pay it, and one of the key factors for determining alimony is the length of the marriage. Specifically, the length of the marriage can impact the duration of the alimony award.

As of writing this, in 2024, same-sex couples in Washington state will only have been able to be married for up to 12 years. For couples that have been married for no more than five years, it is uncommon to be awarded support, and couples married for five to 25 years (i.e. a medium-length marriage) should only anticipate receiving one year of support for every three years of marriage.

Finding Legal Representation For A Same-Sex Divorce

McKinley Irvin attorneys have a track record of success handling LGBTQ divorce and family law matters. If you are considering divorce, have recently filed, or have been served, get in touch with our team to consult with a family attorney who is well-informed about issues affecting same-sex families.

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