Same Sex Divorce

Since 2004, same sex couples in the Commonwealth of Massachusetts have had the right to get married. Unfortunately, just like any other marriage, same sex marriage is not immune to a breakdown.  Same sex divorces have a tendency to be more complex because, based on the newness of same sex marriage, there are numerous legal issues that have not yet been fully analyzed by the courts.

Alimony and the Division of Marital Property in Same Sex Divorces
While, for the most part, same-sex couples possess the same rights as their heterosexual counterparts when it comes to division of assets and alimony, isolated issues may still pose problems. One reason is that some federal pension plans, tax benefits, and other types of long term financial allocations might still have complicated laws regarding the distribution of assets to same sex couples.  Another reason is that same sex couples who have lived together for a significant amount of time prior to marriage, which may substantially affect the determination of how property should be divided.

Child Custody and Child Support in Same Sex Divorces
The same laws that govern child custody and child support for heterosexual couples applies to same sex couples. One issue of which same sex couples must be aware is custody issues that might arise when both parents have not established a legal relationship with the child. In the Commonwealth of Massachusetts, children born through the methods of assisted reproduction within a legal spousal relationship are considered the legal children of the couple.  This assumption of legally acknowledged parenthood exists even though only one spouse has a biological relationship to the child.  When children are born through assisted reproduction methods prior to the marriage, however, the later marriage of the couple may not create the same legal relationship between the child and both parents.  It is important for both parents to take steps to establish a legal relationship with the child through a formal court action in the event that a divorce does occur.  If a legal relationship is not established between a child and a non-biological parent, such parent may have to demonstrate to the Court that the parent is a de facto parent. This phrase describes an individual who has no biological relationship with the child but has actively serves in a substantial part of the child’s life.

Anyone faced with divorce – whether same-sex or not – a consultation with a skilled and knowledgeable attorney can relieve at least some of associated anxiety and provide a lot of information regarding the process.

Resources for Same Sex Divorce

The Windsor Effect on Marriages by Same-Sex Couples by The Williams Institute

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