A Quick Guide To Divorce For Members of The LGBT Community

Meta-description: Divorce is complicated, emotionally, logistically, legally – and it can be even trickier if you’re LGBT+. Read this guide to help you navigate this difficult time. 

Whether you are in a relationship with someone of the opposite sex or the same sex, or your partner identifies as non-binary, going through a divorce is going to be tough. 

Indeed, in the US, if you are going through a divorce with your partner, and you are both members of the LGBT community, you may find that your legal separation may differ slightly from that of your friends who are in heterosexual marriages. 

Why? Well, for one thing, it is important to think about what is entailed in a same-sex relationship. In a monogamous couple, the child’s father will be the male in the marriage, but in an LGBT marriage, this may not be the case, especially if the children are adopted or fostered. 

So, if you are looking to divorce your partner and you are both members of the LGBT community, how can you keep things like child custody amicable? Also, does the process differ from divorcing in a heterosexual marriage? Here is a quick guide to help you navigate this difficult and highly emotive time. 

Divorce of Dissolution?

Since 2015 in the US, LGBT couples have had the constitutional right to marry in all states across the US. Of course, with this access to equal marriage rights came access to equal divorce rights. 

However, what if you and your partner entered into the earlier equivalent of marriage for members of the LGBT community, which was known as a domestic partnership? How does the legal separation process work?

Well, if you have engaged in a domestic partnership, then you will need to begin a dissolution. The best way that you or your partner can do this is by filing a petition for dissolution with the appropriate court in your state under the advice of a lawyer. 

If you have engaged in both a domestic partnership and a marriage after 2015, it does get a bit more complicated! You will need to file for both a dissolution of the domestic partnership and a divorce at the same time, as ticking off one does legally invalidate the other. So, when it comes to LGBT divorce on its own, it is relatively straightforward and does not require as much paperwork!

Divorcing Your Partner

It is important to note that, in general, divorce laws will vary from state to state, but the good news is that this means the process is more streamlined and can be broken down into the following steps.

The first thing you will need to do is consult with an attorney. They will provide guidance on your unique situation, as well as break down the laws in your state. As mentioned before, after 2015, the right for members of the LGBT community to marry was a constitutional right, so the advice that is given should not differ due to your sexual orientation. Of course, if you feel you are being given poor-quality legal advice due to the personal beliefs of the attorney, report them, and seek legal representation elsewhere. In order to file for divorce, you need to have been legally married to your partner for over 12 months. 

After this, you will need to file a petition, which means that after this point, in this article, you will be called the petitioner. The petitioner will submit a document that outlines the grounds for divorce unless, of course, you are filing for a no-fault divorce, in which case, you will not need to provide a reason. The petitioner will also need to include information about your shared assets and your children.

When you have filed this petition, you need to serve the papers to your spouse, after which they have 30 days to respond. Be aware that unless you are opting for a no-fault divorce, your former spouse can provide counterclaims or refuse the divorce altogether.

With the help of your legal teams, mediation can begin. This will aim to take place out of court to keep costs down and will involve your attorney and your former spouse’s attorney working to reach a compromise about your shared assets, child access, and other issues, such as the division of furniture when you separate. If, however, the mediation proves to be unsuccessful, then you will likely need to go to court.

Once all of the points are settled, your legal teams will draw up a settlement agreement, which is a legally binding contract that you will both need to sign. It’s worth noting here that if any of the terms that were agreed to in the settlement agreement are broken after it is signed, you are opening yourself up for being prosecuted by your former spouse, so make sure you are crystal clear on what is pertained in the agreement before you sign it.

Divorce and the LGBT Community 

As mentioned before, due to the nature of LGBT marriage, there are going to be some unique complications that can and will arise in set circumstances. So, this segment of the article will look at the most common complications that LGBT couples face when trying to divorce in the US.

Spousal Support

The longer that you and your former spouse were married, the higher the chance will be that the lower-earning member of the couple will be able to receive spousal support

Also, in divorce cases, in general, any properties that were bought will need to have been bought within the timeline of the marriage for them to be divided equally between the couple. In most cases, if your former spouse is raising young children from your marriage, then they will likely be awarded the family home until the youngest child reaches the age of 18 years of age.

Child Access

Earlier in the article, the matter of biological paternity or maternity of a child was mentioned. 

In the case of LGBT marriages, however, unless one member of the couple is biologically the parent of the child(ren) in the marriage, then this area can quickly become very muddy. That is unless, of course, you and your partner filed for parental rights when you were both married.

If you didn’t, then most legal teams will aim to have this issue addressed and finalized in the mediation sessions. This is why it is best to approach the emotive issue of child access via an impartial party, as they will guide the issue to a resolution, which will hopefully benefit everyone. You can, of course, file for parental rights after the divorce has been finalized, but this is more likely to stick if the mediation has been successful and if you have no legal issues being held against you, such as domestic abuse charges or child abuse.

Date Of Marriage

More complications arise based on the exact date of your marriage. If you were married in the five months in 2008 in California when same-sex marriage was legalized, only to then be banned and reinstated in 2013, there may be some issues that need to be looked at when you legally separate. This is because, legally, you will have only been married for five months, as same-sex marriage was then banned, potentially invalidating any certificates that were signed in the initial five-month period. So, this can create confusion about properties bought in those five years from the ban to the reinstatement, as well as the parental rights of any children that you have together.

If you got your marriage reinstated after the five-year ban, to then separate, it is still worth talking it through with your legal team.