Courts Confused With Same Sex Divorce

Posted: 11 September, 2019

Same sex marriages have been legal in some states since 2004 and more states are legalizing them as time goes on. Divorce filings for same sex marriages are starting to appear in courts . Compared to traditional marriages there is a difference in how certain issues are resolved. Some of those issues are confusing even the courts.

Currently, not all states recognize same-sex marriages. Couples may be residents of one state, but the marriage took place in another. If the state they reside in does not recognize same-sex marriages, a divorce will not be granted in that state. In order to get a divorce, at least one party needs to establish residency in a state that recognizes the marriage so they can get divorced. Most states require a six month residency before a person can even apply for a divorce.

An example of court confusion recently occurred in Ohio, a state that does not recognize same-sex marriage. In one courtroom a judge granted a same-sex couple a divorce. The next day in an adjoining courtroom, a different judge refused to grant a divorce to a different same-sex couple.

In most states, assets accumulated by the couple during the course of the marriage, beginning on the date of the marriage up to the time of the separation, are considered community property and divided equitably during the divorce proceeding. Some same-sex couples have been together for many years but were unable to marry before 2004 when Massachusetts became the first state to legalize same-sex marriages. They may have lived as though married for many years, bought property together and co-mingled their assets.

One couple lived together as though married for 17 years before they were able to legally marry in 2008. Even though they had commingled assets for their entire relationship, the court only considered the property they had accumulated since the actual 2008 legal marriage as community property.

When couples have children a host of issues involving custody and child support arise. Some courts do not recognize parental rights if the non-biological parent did not adopt the children.  Other courts have ruled the opposite. One of the interesting twists is how to handle the term primary custody when there are three parents (biological parents and the court ruled parent), and they have equal visitation. In Nevada the lower courts have ruled on some of these custodial issues and a few cases slated for the Nevada Supreme Court.