LGBTQ+ Family Law: Unique Issues Same-Sex Couples Face During Divorce

Young gay parents with their daughter having fun in park. Parents holding girl in arms. Enjoying in beautiful sunset. Caucasian ethnicity. Visual concept for a legal blog on issues same-sex couples face during divorce.

Massachusetts was the first state in the nation to recognize same-sex couples’ marriages. But when those marriages end, LGBTQ+ spouses and parents still face some unique issues not common in heterosexual divorce cases, from questions about parentage to concerns about out-of-state enforcement, same-sex couples face during divorce.

LGBTQIA Couples Can Get Married, and Divorced

Same-sex marriage has been legal in Massachusetts since 2003, when the state Supreme Judicial Court decided Goodridge v Mass Department of Public Health. That case provided a definition for the term marriage – traditionally interpreted as between one man and one woman – to include the voluntary union of two persons as spouses, regardless of gender.

What Goodridge means for LGBTQIA couples in Massachusetts today is that same-sex couples are entitled to use the same laws, procedures, and processes that heterosexual couples use to get married and divorced throughout the state. There is no such thing as a special “same-sex divorce” in Massachusetts. Instead, there is just a divorce between spouses who share the same sex.

Unique Issues in Same-Sex Divorce Cases

Legally, there is no difference between heterosexual and homosexual divorce in Massachusetts. However, the history of same-sex marriage, and the biological realities of conception for LGBTQ couples mean that certain unique issues face same-sex couples in divorce.

Biological and Legal Parents in Same-Sex Couples

In Massachusetts, like in many other states, a biological parent who has a relationship with their child is considered the child’s legal parent (as are adoptive parents). However, in most LGBT families with children, at least one parent is not biologically related to their child. If the couple was married at the time the child was born, same-sex couples can rest assured that both partners are presumed to be the child’s parents. They can both be named on the child’s birth certificate and can seek custody in a later same-sex divorce or custody case.

Unmarried same-sex parents may have a harder time proving the presumption applies, but it is still possible. In situations like that, an LGBT family law attorney will need to show that the couple received the child into their home and acted as parents to the child. This emphasizes the child’s connection to parental figures and the attachment that forms in that relationship over the biological connection.

Once that presumption is in place, the biological and non-biological parents of the child will be held on equal footing if the question of custody is brought to the courts. The judge will then decide what custody arrangements are in the best interest of the child, even if that means placing the child primarily with their non-biological mother or father.

Counting Cohabitation for Alimony and Property Divisions

Gay marriage may have been legalized in 2003, but many gay and lesbian couples were already living together before that date. This can create problems when a long-term same-sex marriage comes to an end. If your partnership pre-dates Goodridge, or if you and your partner lived together for a period of time before getting married, the true length of your relationship may not be reflected in your marriage date.

Massachusetts family law judges are directed to consider the length of the marriage in dividing marital property, and determining whether alimony (sometimes called spousal support) is appropriate. Massachusetts courts are allowed (but not required) to consider premarital cohabitation but only if there is evidence of an economic partnership. To get a fair divorce resolution that recognizes the full length of your relationship, your LGBT divorce lawyers will need to show that you and your spouse were more than just roommates, and operated as a single financial unit even before your marriage.

Out-of-State LGBTQ Family Law Issues

While Massachusetts has taken steps to protect LGBTQ+ couples and families, other parts of the country, and other countries around the world, may not have the same protections. It is important for same-sex couples to consider the effect of other states’ laws when deciding when and how to work with an LGBTQ friendly family law attorney.

Recognizing Parental Rights of Non-Biological Parents

While Massachusetts law recognizes the parental relationships between children and their parents in same-sex relationships, other states or countries may place a stronger emphasis on biology. Before a same-sex couple separates or one parent considers moving out of state, gay and lesbian couples should consider whether to go through a second-parent adoption or ask the Massachusetts Court to enter a custody order.

Either of these processes will result in a court order stating that both parties are the legal parents of the child. Because the U.S. Constitution requires other states to give “full faith and credit” to Massachusetts court orders, that legal determination can protect your children from losing access to a parental figure just because they cross state lines. Without a court order, same-sex couples run the risk that local laws may not apply the same assumptions to a child’s same-sex co-parents.

Same-sex divorce brings a lot of uncertainty, especially if there are out-of-state concerns. It’s crucial to have a knowledgeable LGBT divorce attorney by your side to protect you and your family throughout the divorce process. At Krispin Law in Needham, Massachusetts, we are committed to offering clients with the compassionate counsel and skillful representation they need to navigate the divorce process. To learn more about how our law firm can help with your matrimonial matter, we invite you to contact Krispin Law to schedule a consultation by calling (617) 421-9090. We offer both in-person and virtual consultations for your convenience.

Categories: Family Law