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The unique challenges of same-sex divorce

On Behalf of | Jan 9, 2023 | Family law, LGBTQ Family Law

Thousands of Texas couples choose to end their marriages every year. Divorce is a complicated process in any situation, but it can be especially difficult for same-sex couples. Many states have marriage laws based on heteronormative standards that same-sex couples must navigate in divorce.

Marriage equality and divorce

A US Supreme Court decision made same-sex marriage legal throughout the United States in 2015. It also simplified divorce for LGBTQ couples by placing same-sex marriage in the same category as heterosexual marriage.

However, many states still have marriage laws that assume married couples are heterosexual. Same-sex couples may be surprised by how family courts decide their situation.

Asset division in LGBTQ divorces

Because legal same-sex marriage is relatively new, couples that have lived together for decades may only have been legally married for a few years. This situation can complicate the division of assets since the court typically only divides assets acquired during the legal marriage.

A prenuptial or postnuptial agreement can benefit same-sex spouses as they begin their married life together. This document will designate assets owned by the individuals before the relationship and help create a fair division.

Child custody in same-sex marriages

Determining child custody is another challenging part of LGBTQ family law. Children born through in vitro fertilization or a gestational carrier will only have a biological relationship with one parent. Although both parents may be heavily involved with childrearing, the court may give greater weight to the claims of the biological parent.

Benefits of mediation

LGBTQ couples may find that mediation is a helpful process when working through a divorce. Settling issues outside the court can help spouses achieve a more practical and cooperative resolution.

Divorce is a complex process no matter who is involved. As family law around LGBTQ marriages evolves, LGBTQ couples need to seek clarity about their legal situation in divorce.