(Jun. 1, 2022) — Married LGBTQ+ couples may find that divorce is more complicated than straight marriages. Here are some things you should know when considering a divorce.
Legalizing same-sex marriage has been a massive victory for the LGBTQ+ community. Still, it has also opened up a new set of challenges, particularly regarding divorce. The LGBTQ+ divorce process can be complicated and confusing, especially if you’re unfamiliar with the law.
Because same-sex couples do not have the same legal protections as opposite-sex couples, there are a few things you need to know before you begin the divorce process. Here’s what you need to know about LGBTQ+ divorce in the United States.
1. There is no federal law governing same-sex divorce.
Unlike opposite-sex couples, governed by the federal Defense of Marriage Act (DOMA), there is no federal law regulating same-sex divorce. Each state has its own rules and procedures for handling queer divorces. This can make the process more complicated, so it’s essential to be familiar with the laws in your state before you begin.
Start by doing some research on your state’s divorce laws. You can also consult with a local LGBTQ+ divorce or family lawyer to better understand the process. You can also ask friends or family members who have gone through a same-sex divorce for advice.
2. You may need to establish legal paternity or maternity.
Some states require a husband and wife to be listed on the child’s birth certificate for the divorce to be granted. If you’re not listed on the child’s birth certificate, you may need to establish legal paternity or maternity before beginning the divorce process.
A legal paternity test can be used to establish paternity if you are the child’s biological father. If you’re not the biological father, you may need to adopt the child to be granted custody or visitation rights. You can also ask the court to recognize you as the child’s legal parent through “de facto parenthood.”
3. You may need to have your marriage recognized in your state.
Not all states recognize same-sex marriage, so you may need to have your marriage recognized in your state before you can divorce. You can do this by filing a petition with the court. The process for recognition can vary from state to state, but it generally requires you to provide proof that you’re married and meet the state’s residency requirements. Once your marriage is recognized, you can proceed with the divorce process.
4. You may need to get a divorce in the state where you were married.
Just as with opposite-sex couples, you may need to get a divorce in the state where you were married. This is because some states do not recognize same-sex marriages from other states. If you were married in a state where same-sex marriage is recognized, but you live in a state that does not, you may need to travel to the state where you were married to get a divorce.
Some states that do not recognize same-sex marriage are Alabama, Florida, Georgia, and Texas, among others. You can check with your local court to see if you need to get a divorce in the state where you were married.
5. The divorce process can be complicated and time-consuming.
Heterosexual couples often have an easier time getting divorced because they can rely on the federal DOMA law. However, same-sex couples do not have this protection, so the process can be more complicated. The divorce process can also be more time-consuming because you may need to establish legal paternity or maternity, have your marriage recognized in your state, or get a divorce in the state where you were married.
If you’re considering a same-sex divorce, it’s essential to prepare for a more complicated process. Be sure to do your research and consult with an expert lawyer to understand the process better.
6. You may need to use alternative dispute resolution methods.
Some states require all divorcing couples to attempt to resolve their differences through alternative dispute resolution (ADR) methods before going to court. This can include mediation, arbitration, or collaborative law. Aside from being less expensive and time-consuming, ADR can also be less stressful than going to court.
If you live in a state that requires ADR, you may need to use mediation or arbitration to settle your divorce. You can also ask your lawyer about using collaborative law, which is a less adversarial approach to divorce. Depending on your state, you may be able to use ADR even if it’s not required.
Divorce can be a complicated process for any couple, but it can be incredibly complex for same-sex couples. If you’re in a same-sex relationship and considering a divorce, it’s essential to prepare for a more complicated process. Always consult with an expert lawyer to better understand the process and what to expect. You can also check with your local court to see if your state has any special requirements for same-sex divorce.