Same-sex divorce a murky issue

On behalf of Lake Toback Attorneys

Few couples in Illinois or elsewhere anticipate a dissolution of their marriage when they take their vows. While it may seem obvious that people who have the right to marry should also have the right to divorce, the concept does not necessarily apply to same-sex couples. Divorce is often more difficult for same-sex couples because of conflicts and gaps in state laws that could take years to resolve.

Although there has been much progress towards marriage equality, very little notice has been given to same-sex divorce. Same-sex marriage is legislated differently in each state which can cause complications regarding not only divorce but on such issues as pensions and inheritance. It is common for a same-sex couple to legally marry in one state and then choose to live in a non-recognition state. Unfortunately, they find that they may need to return to the state in which they were married to establish residency before being granted a divorce. They also cannot legally remarry in a non-recognition state as that would constitute bigamy.

The presence of children can complicate even legal divorces of same-sex married couples, especially if legal custody or adoption arrangements were not properly set up prior to the divorce. If only one of the parents is deemed to be the adoptive parent, a judge may not necessarily have to consider parenting rights of the other “de facto” parent.

Disputes regarding divorce can be difficult, especially for same-sex couples, who may be dealing with issues such as child support and visitation. An attorney with experience in family law matters may be able to help explain the law and provide various options in order to help a client make informed decisions.

Source: The Daily Beast, “The Gay Divorce Trap: When Same-Sex Marriage Goes Wrong“, Lizzie Crocker, September 30, 2013

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Same-sex divorce a murky issue