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Same-sex divorce still has a few wrinkles to iron out

One of the biggest issues occurs in the areas of division of property, child custody and spousal support. It has to do with how long a couple has been married.

The U.S. Supreme Court’s decision in Obergfell v. Hodges legalized same sex marriage in every state. But prior to that ruling, different states had different laws, some governing civil unions, some governing domestic partnerships, and in 13 states, laws forbidding same sex marriage altogether.

 

Outdated laws

While these different contracts in different states resembled the marriage contract, they were not the same. And of course, New York City is now home for tens of thousands of couples from all these past frameworks. Some are now seeking divorce.

When did it start?

The question that needs to be settled is: When did the marriage actually begin?

Do judges decide on the basis of the date of conventional marriage, or do they reach back to the point where the couple first cohabited? This date is also critically important to spouses who earned less money than their partner, and who now seek spousal support.

Custody issues are also different for many same-sex divorces. Typically, only one member of the marriage has legal parental rights -- no matter how much the other partner contributes financially and emotionally to the child’s upbringing.

Courts and legislatures must establish standards that allow both parents -- including the non-legal one -- to enjoy full parental rights and have access to the child.

Are these problems unresolvable?

By no means, and New York is showing national leadership in finding just solutions for divorcing LGBT couples. Not since Reconstruction has our country had to deal with the sudden influx of so many individuals asserting their established rights.

But it is still critical to work with a family lawyer who is aware of these matters, and can work with you to find satisfactory -- and precedent-setting -- solutions.

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