Now that same-sex marriage is legal and recognized throughout the United States, same-sex couples in Arizona and elsewhere finally have all the same rights as heterosexual couples, including the right to divorce. Same-sex divorce, like other misfortunes, is rarely anticipated and even more rarely prepared for, except in prenuptial or postnuptial agreements which are usually only created when substantial estates are involved. Most newlyweds, whether gay or straight, expect to be together “until death,” so they experience great emotional stress at the thought, let alone the process, of divorce. Having a skilled family law attorney to assist you as you navigate the turbulent waters of divorce is essential, especially if that attorney is Mitchell E. Cohen.
Arizona Is a No-Fault Divorce State
In Arizona, neither spouse is blamed for a marital split. The spouses simply agree that the marriage is “irretrievably broken.” There is no connection between spousal support or division of property and misconduct of one of the spouses with the possible exception of instances in which one partner has wasted family funds, for example by feeding an addiction.
Aspects of Same-Sex Divorce To Consider
There are a great many details to be considered when any couple is divorcing, and when children are involved there are always more complications. In the case of same-sex divorce, in which conception of such children may have taken place in an unconventional way, there may be even more complexity to deal with. Some or all of the following issues may come to the fore in any divorce:
- Division of property (including division of debts)
- Child custody, child support, and parenting time (visitation)
- Spousal maintenance (alimony)
- Possible modifications to child or spousal support
Lead attorney of Cohen Family Law, Mitchell E. Cohen has a well-earned reputation throughout Arizona for capability and compassion, and a track record of successful outcomes. His reputation is strong in the gay community where he has helped many families resolve legal issues with negotiation alone and where he is also known as a vigorous litigator when the situation warrants courtroom action.
Keeping Divorce Decisions Civil
Mitchell E. Cohen’s office is set up to resolve conflicts and assuage tensions. He knows all too well how intense emotions can cloud rational thinking and is prepared to keep divorcing spouses as calm as possible. Aware that the victims of agitation and anger are most likely to be any children in the family, he is committed to keeping communications as diplomatic as he can, even if negotiations break down and litigation is necessary. In addition, he has experience as a divorce mediator.
Division of Property in Same-Sex Divorce Cases
No matter whether a couple is gay or straight, in Arizona assets earned or acquired during a marriage are considered “community property,” legally owned equally by both spouses. The networth of these assets will be divided as equally as is feasible between the two parties. The spouses may also, however, own what is deemed “separate property,” and each respective spouse is entitled to retain this property after the divorce. Below is a clarification of the difference between community and separate property.
Community Property includes:
- Wages or income earned by either spouse during the course of the marriage
- Property or assets purchased or acquired during the marriage using that income
- Property that both parties have agreed in writing is community property
- Gifts from one spouse to the other during the marriage
- Retirement accounts or pensions of either spouse
- Debts accrued by either spouse during the marriage (e.g. credit card debt)
Separate Property includes:
- Property acquired before the marriage by one partner
- Inheritance received by one spouse during the marriage
- Gifts received by only one spouse during the marriage
- Property exchanged by the spouse for the designated inheritance or gift
- Property both parties have agreed in writing belongs to one spouse only
- A personal injury award to one spouse
- Gifts from one spouse to the other before the marriage (e.g. an engagement ring)
- Debt incurred before the marriage took place (e.g. some student loans)
Private legal agreements, such as prenuptial or postnuptial agreements may alter the legality of certain elements of the above lists. It is also possible that one spouse converts his or her pre-owned bank account to a joint account or gifts his/her spouse with other privately owned property during the marriage. Once the other spouse receives the asset as a gift, it is considered part of community property.
According to the community property system, each spouse’s separate property remains separate after the marriage takes place, throughout the course of the marriage, and during and after divorce proceedings are complete. The couple’s community property, that is, all assets and debts acquired during the length of the marriage, are presumed to be equally owned by both spouses. As mentioned earlier, debts considered “wasteful” by the court, such as debts accrued through excessive gambling or to support a substance addiction, may be considered separate by the court.
Child Custody, Parenting Time and Child Support in Same-Sex Divorce Cases
The issues involving children in same-sex divorce negotiations and litigation are the same as those in traditional divorce, except for the issues of paternity and parental rights. One would assume that two parents severing marital ties, no matter what their gender identification or sexual orientation, would want to share their children, but we all know that, unfortunately, this is not the case.
Arizona has now recognized the parental rights of both parents of a child conceived during a same-sex marriage, whether the child was conceived with a donor egg, a donor sperm, or both, and whether one of two lesbian mothers carried the child or a surrogate mother was used by one of two gay fathers. According to two recent decisions by The United States Supreme Court, whatever rules have been used to determine the legal parentage of children born to heterosexual married couples in the past have to be applied equally to all married couples in the present, regardless of the gender or sexual orientation of the spouses.
This equality of parenting rights for same-sex marriages carries over into custody (both legal and physical), parenting time, and child support. Legal custody is generally given jointly so that both parents have an equal say in their children’s education, religion, and medical care. Physical custody, depending on the needs of the children and the work schedules of the parents, may be awarded jointly, in which case children spend approximately equal periods of time with each parent, or one parent may be given sole physical custody. In the latter case, the children live with one parent, but spend significant parenting time with the noncustodial parent, typically one or more nights a week, every other weekend, half of school holidays and some vacation time.
Although a number of factors are used to determine which spouse pays child support and what the amount that support should be, in most cases the noncustodial parent pays support to level the playing field, since the custodial parent is paying most of the children’s everyday expenses. The amount of child support paid depends on the income of both parents, and, to a certain extent, on the ages and special needs of the children.
In Arizona, as in many other states, the term “spousal maintenance” is used to refer to alimony, the support given by one divorcing spouse to the other. Of course, alimony was originally conceived for traditional heterosexual divorces in which men were typically wage earners and women were most often housewives (unprepared for the job market and often staying at home to care for young children). In recent years, spousal maintenance is less frequently awarded because both spouses are commonly working and daycare services are more available.
There are still many instances, however, in which one spouse earns a considerably higher income than the other and/or other circumstances that make alimony necessary, after either gay or straight divorces. Spousal maintenance may now be awarded to either partner, regardless of perceived or biological gender or sexual orientation. Factors taken into account when negotiating spousal maintenance include: the length of the marriage, the marital standard of living, the earning capacity and physical and emotional health of the spouse who is seeking maintenance, the financial resources of both spouses, and the ability of the contributing spouse to pay.
Modification or Termination of Child Support or Spousal Maintenance Agreements
Recognizing that life is ever-changing, the courts realize that arrangements for child support or spousal maintenance may have to be altered if financial circumstances of either spouse change substantially due to illness, injury, loss of job, substantial inheritance, or incarceration. Spousal maintenance payments always terminate if the receiving spouse remarries or if either spouse dies.
Contact Our Phoenix Same-Sex Divorce Attorney
If you are contemplating same-sex divorce in Arizona and seeking legal representation with an attorney familiar with the issues that pertain to your particular situation, please contact Mitchell E. Cohen by phone or fill out one of the contact forms on our website. Come in for a free consultation and learn how efficient, well-informed, and understanding a divorce attorney can be.