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Common Issues in Same-Sex Divorces

gay couple fighting, same-sex divorce

June is Pride Month, which recognizes the challenges faced by the Lesbian, Gay, Bisexual, Transgender, and Queer community as they have fought and continue to fight for equality. While the LGBTQ+ community has achieved significant progress since the Stonewall uprising, inequalities and challenges still persist.

With that being said, this is a good time to discuss some common issues same-sex couples face in their divorce. As with any marriage between two people, it is very possible for a union to dissolve. Heterosexual and same-sex spouses are no strangers to trials and tribulations in their marriages, so when matters reach an irreparable point, divorce tends to be the solution.

While the divorce process generally looks the same for both same-sex and heterosexual spouses, same-sex spouses may encounter unique challenges in their divorce that heterosexual spouses may not. Since same-sex marriages and divorces are relatively new in the legal world, it can be difficult to make determinations and resolutions for certain matters, including:

Spousal support: Typically, South Carolina courts determine spousal support, also known as “alimony,” based on the length of the marriage. As such, the longer a marriage lasts, the more spousal support will be awarded to the dependent spouse. But couples who cohabited prior to the 2014 legalization of same-sex marriages in South Carolina may experience issues because a judge may not consider those years of cohabitation when calculating spousal support.

For instance, if a couple cohabited in 2011 and got legally married in 2014, a judge may only evaluate the couple’s financial records and earnings from 2014 onward, rather than 2011 onward.

Child custody and support: Many same-sex couples choose to expand their families through adoption or surrogacy. For this reason, determining child custody and support can be complex because one partner may have used their egg or sperm to have a child, leaving the other partner biologically “out of the picture.” In a divorce, the partner who used their egg or sperm may assert child custody rights over the other partner, requiring the other partner to pay child support and potentially forfeit their visitation rights. Ultimately, the biological parent would likely get a more favorable outcome in regard to their child custody and support agreement.

What happens to same-sex couples who have adopted their child? Neither partner is biologically related to the adopted child. This can complicate matters more, as adoption laws and same-sex divorce laws are not quite cohesive due to this relatively new concern in the legal realm.

Property division: South Carolina is an equitable distribution state, meaning marital property is divided equitably, or fairly, between divorcing spouses. For background, marital property is any property that was acquired during the marriage. With this in mind, if a same-sex couple purchased property before they were legally married in 2014, that property wouldn’t be considered marital property. Instead, property purchased before the marriage would be considered separate property, which is not subject to division. As a result, property division between same-sex spouses can get tricky.

With the help of a lawyer, however, these obstacles can turn into opportunities for a successful outcome. Divorce is a burden in and of itself, and you shouldn’t have to stress over additional hardships solely because of your same-sex partnership. Just because the laws haven’t quite caught up with same-sex divorces doesn’t mean you should suffer unfavorable outcomes as a result.

Allow our divorce attorney at Masella Law Firm, P.A. to take the weight off your shoulders. Get in touch with us online or at (803) 938-4952 to learn more! You are not alone.