LGBTQIA+ couples have equal rights to marriage and divorce but there may be unique challenges that traditional spouses do not face. Keep reading to learn more.
Obergefell v. Hodges
The landmark decision that made same-sex marriage legal was Obergefell v. Hodges. According to the supreme court decisions, at the federal level, same-sex couples had equal rights to marriage and divorce in all capacities. This means that couples could benefit from health benefits, pensions, tax exemptions, and other allowances that have traditionally only been available to heterosexual married couples.
It is important to note that the Obergefell decision also applies to divorce. At the federal level, same-sex couples may marry and divorce and are subject to laws applying to the division of property, child custody, and spousal/child support. Of course, each state has its own rules and regulations regarding divorce, but at the federal level, same-sex divorce is legal.
The basic rules for divorce are universal. The spouses must meet the state’s residency requirements prior to filing, and there needs to be legal grounds for divorce. Some states allow fault-based grounds which include adultery, abandonment, cruelty, etc. Most states however at least allow spouses to claim ‘irreconcilable differences’ or some variation for couples who can simply no longer remain married.
In some cases, a marriage may sour and the divorce may become contentious. Contentious divorces have their own challenges as important matters like property division and child custody become battlegrounds compared to amiable cases where spouses may reach an agreement prior to filing.
For same-sex couples, however, contentious divorces may become even more difficult thanks to complicated and gendered parentage laws that may still exist, hidden in the state legislature. While same-sex marriage is federally legal and most states allow it nearly unrestricted, there are still laws hidden in the books that while dormant, can be discovered and weaponized in a contentious case.
For example, child custody may be challenging in terms of paternity. With the advent of assisted reproduction for same-sex couples, the non-mother parent may not necessarily have parental rights if they did not donate genetic material for conception.
Divorce in MO
Missouri categorizes same-sex couples as ‘non-traditional’ and applies a number of rules that are specific to non-traditional circumstances. The state did not allow same-sex marriage or civil unions until the Obergefell decision in 2015.
This means that LGBTQIA+ individuals who lived together or got married in other states prior to 2015 may not have their unions officially recognized in court. For example, if a couple got married in 2012 in another state and moved to Missouri, the court may not consider them to be married for the full 11 years. Depending on the couple’s circumstances, this could impact their rights to their spouse’s pension, military benefits, and other assets that require a minimum marriage term.
Same-sex couples face unique challenges during divorce and should consult an experienced attorney regarding divorce, mediation, and other marriage matters. A lawyer can help to defend the rights and freedoms awarded to same-sex couples and offer support throughout the process.
If you are considering an LGBTQIA+ divorce, contact Smith Law Offices LLC.