FindLaw KnowledgeBasePublished: 2013-05-02
In 2004, Massachusetts became the first state to open civil marriage to same-sex couples. It’s been nearly a decade since the first same-sex marriage was performed in The Bay State, and in that time thousands of same-sex couples have tied the knot.
Of course, a lot can happen in the span of nine years. For one thing, although the federal government has not yet recognized same-sex marriage, multiple states have joined Massachusetts in legalizing same-sex marriage (and several others have embraced half measures, like permitting civil unions, recognizing same-sex marriages on a conditional basis or recognizing same-sex marriages performed in other states). On a more personal level, a number of the same-sex couples who were on the ground floor of the marriage boom have found themselves growing apart.
Geography, property division issues and parents’ rights frequently come up
Divorce can be a challenge for any couple. Yet, for same-sex couples, untangling a marital union presents a number of unique difficulties.
Jurisdictional issues can create problems when same-sex couples decide to split. A same-sex couple who got married in Massachusetts, lived in Massachusetts the entirety of their marriage and now seeks to get divorced in Massachusetts may be able to avoid this problem. But what about same-sex couples who were married under the laws of another state? Or who married in Massachusetts and now live in a state that does not recognize their marriage? In some cases, same-sex couples living in another state may have to return to Massachusetts to get divorced in a court of law.
The fact that the federal government does not recognize same-sex marriage creates legal issues even for same-sex couples who have never left Massachusetts. For example, extensive legal workarounds are required to provide for equitable distribution of federal benefits like pensions and Social Security. Property division in same-sex divorces can also involve tax considerations that are not present when opposite-sex couples divorce.
When it comes to child custody and visitation, married parents have certain inherent rights. Yet, when a child is the biological offspring of one same-sex partner, the other may not be recognized as a parent in terms of any federal questions unless he or she has officially adopted the child.
Of course, same-sex couples also have to face all the other issues that affect anyone going through a divorce. A same-sex marriage is no exception to the usual complexities of ending a marriage.
With laws changing constantly, it is important to get an attorney experienced in same-sex divorce
Because same-sex marriage is currently such a hot button legal issue, the laws affecting it can change rapidly. For instance, the U.S. Supreme Court heard a case in late March about the constitutionality of the federal Defense of Marriage Act, a portion of which says marriage may only be a relationship between a man and a woman for purposes of federal law. If the Court strikes down this provision of the Defense of Marriage Act, it would have big implications for same-sex divorce. A decision is expected sometime this summer.
If it’s time to split up with your same-sex partner, there are a number of challenges you will have to overcome. But, with the right legal help, you can get through divorce and stay abreast of any new legal developments. Talk to a Massachusetts family law attorney with experience in same-sex divorce to explore your legal options.