Is Divorce More Difficult for LGBTQ Couples?
Divorce can be a difficult and emotionally traumatic experience for anyone who goes through it. For LGBTQ couples, however, the process may be complicated by unique challenges that are not encountered by heterosexual couples. These complications may impact various aspects of divorce, including division of assets, spousal support, child custody, and parental rights. It is crucial to seek advocacy and representation from an attorney with experience handling LGBTQ divorce cases and in-depth knowledge of the specific legal issues involved.
How Does Legal Recognition Factor into LGBTQ Divorce?
Legal recognition of the history of the marriage is one of the main challenges LGBTQ individuals face in an Ohio divorce. Same-sex marriage has been legalized nationwide since the 2015 U.S. Supreme Court landmark decision in Obergefell v. Hodges. However, many LGBTQ couples were together for years or decades before that decision made it possible for them to legally marry. If a couple in this situation divorces, it complicates the matter of determining the length of the marriage and, consequently, what is considered marital property and how assets are divided between the parties. Legal recognition of the duration of the marriage can also affect spousal support (alimony) and other financial settlements.
How Is Child Custody Determined When a Same-Sex Couple Divorces?
In an opposite-sex marriage with children, paternity is typically presumed. In same-sex marriages, one of the parents may not be biologically related to a child. This is common when children are born through assisted reproductive technologies or when a child is from a prior relationship.
Under Ohio law, parents have equal rights and responsibilities concerning their children, regardless of gender or sexual orientation. For non-biological parents, however, establishing parentage may be essential for child custody and visitation rights in a divorce.
Parentage may be established through any of the following methods:
- Second-parent adoption: Through this process, the non-biological parent is granted full legal rights and responsibilities for the child.
- Surrogacy contract: This is a legal agreement that establishes the parentage of the intended parents.
- Pre-birth agreement: This type of contract clarifies parental roles before the birth of the child.
Family courts make child custody decisions with the best interests of the child as their primary consideration. They consider various factors, including the physical and mental health of each parent, the child’s relationship with each parent, the stability of each parent’s home environment, the child’s physical and emotional needs, and any past instances of domestic violence
What Are the Potential Financial Complications in an LGBTQ Divorce?
LGBTQ couples who were together for years before they could legally marry may face challenges that complicate the financial aspects of divorce. While heterosexual couples can show a clear date on which the marriage began, same-sex couples may need to produce other documentation to prove the length of the relationship and a spouse’s contribution to it. This can make the process more challenging and contentious and impact various financial aspects of divorce.
Many LGBTQ couples took vows and had commitment ceremonies before 2015 when the landmark Supreme Court ruling made legal marriage possible. Establishing the date of the marriage is essential in a same-sex divorce. The “start date” may be before the legal marriage occurred.
Division of Assets
In Ohio, marital property is subject to equitable distribution in a divorce. It is divided fairly, although not necessarily equally, between the spouses. Marital property includes any property acquired by either spouse during the marriage, except an inheritance by one spouse, as stated in Section 3105.171 of the Ohio Revised Code.
Many LGBTQ couples had lived together and pooled their resources for years before the law allowed them to legally marry. This can complicate the matter of what constitutes marital property to be divided between the spouses in a divorce.
Due to a historical lack of legal recognition, many LGBTQ couples may not have established joint ownership of real property and other assets. They may not have had the same opportunities as heterosexual couples to engage in joint financial planning. This can add a layer of complexity to the division of marital assets when a same-sex marriage ends.
Alimony
Spousal support is another financial aspect of divorce where challenges can arise for LGBTQ individuals. Unlike child support, the courts have a great deal of discretion in determining and calculating alimony. Along with the couple’s standard of living, each spouse’s income, earning capacity, retirement benefits, age, education, physical and emotional health, and other factors, Ohio courts consider the duration of the marriage in determining alimony. The length of the marriage may also impact the duration and amount of support payments. It can be challenging to obtain a fair spousal support decision when a couple has been together for many years but only legally married for a much shorter time.
What Are the Challenges in Finding Legal Representation for an LGBTQ Divorce?
Same-sex marriage has only been legalized nationwide since 2015.
The evolving legal landscape of LGBTQ divorce is complex and difficult to navigate and not yet standardized or inclusive. It can be challenging to find an attorney with extensive experience and a thorough understanding of the specific legal issues that can arise in an LGBTQ divorce. At Lawrence Law Office, our team of seasoned trial attorneys have decades of experience. We can assist with every aspect of LGBTQ family law, including divorce. Contact us at 614-363-1273 to schedule a consultation.
