Q: When it’s over, do married same-sex couples need to go through a formal divorce?
The fight to have same-sex marriages recognized throughout the United States was long and grueling, but ultimately successful when the United States Supreme Court ruled in favor of marriage equality in Obergefell v. Hodges in 2015. Countless LGBTQ couples celebrated the victory by making their unions official with an estimated 600,000 same-sex couples legally marrying since then.
But as Phoenix same-sex divorce attorneys have seen, gay marriages – just like straight marriages – don’t always last.
Along with the right to marry, the LGBTQ community has the equal right to get a divorce. And the obligation to legally do so before they remarry again.
What issues go into a gay divorce?
Whether gay or straight, divorcing couples generally have the same issues to work out when untying the knot. At a minimum, gay couples must address the issues of division of marital property and debts, plus whether one spouse will pay spousal support to the other.
Arizona is a community property state that considers any assets earned or acquired during a marriage to be equally owned by both spouses. As such, those assets are divided as equally as possible between each partner in the event of a divorce. There is, however, property that is considered separate and as such, it remains with one of the partners after a divorce – unless otherwise agreed to by a prenuptial or postnuptial agreement.
What is separate property in Arizona?
Separate property generally includes one partner’s:
- property acquired before the marriage;
- inheritance or gifts received during the marriage;
- gifts received from the other partner before the marriage;
- personal injury award;
- debts incurred before the marriage (i.e. some student loans).
While dividing assets and debts can be stressful, the most difficult and emotional part of divorce is often related to child custody and visitation and child support issues.
Often, children of same-sex marriages are conceived through third-party reproductive technologies that may involve the use of donor egg, donor sperm, donor embryo, or a combination. In addition, a gestational carrier and/or a surrogate to carry the baby for its intended LGBTQ parents may have been needed.
Arizona recognizes the parental rights of both parents of the child conceived during a same-sex marriage and applies parenting rights equally when determining custody, parenting time, and child support.
For same-sex couples, the right to divorce– just like the right to marry– can be a source of pride. Needing to go through the formal divorce process, rather than just “breaking up”, is further validation of the legality and sanctity of the marriage. Of course, that doesn’t make it any easier.
If you have questions regarding a same-sex divorce, or any divorce, Cohen Family Law can help you. Contact us today to schedule a free consultation.
From our office in Phoenix, we represent clients throughout Arizona in all aspects of family law. It’s all we do.