LBGTQ divorce cases can pose extreme dilemmas and complications for same-sex couples, and because of these problems, the individual spouses often need the services of a lawyer to progress through the divorce case. It is usually only through legal support that the couple can proceed appropriately through a divorce case and understand all options that exist. Rights for lesbian, gay, bisexual, and transgender (LGBT) people in Utah are among the most extensive in the United States. Protective laws have become increasingly enacted since 2014, despite the state’s reputation as socially conservative and highly religious. Same-sex marriage has been legal since the state’s ban was ruled unconstitutional by a federal court on October 6, 2014. In addition, statewide anti-discrimination laws now cover sexual orientation and gender identity in employment and housing, and the use of conversion therapy on minors is prohibited. In spite of this, there are still a few differences between the treatment of LGBT people and the rest of the population.
Along with the right to marry in every state, marriage equality laws also gave couples the right to divorce, regardless of where they live. But, in some cases, the divorce process can become very complicated. If you and your spouse don’t have multiple registrations for domestic partnership or civil unions, or you were married after marriage equality became law, you can file for divorce in your state as long you meet the residency requirement, which means you must be a resident of that state before you may file for divorce there. Each state has different rules, but most require spouses to live in the state for 6 months before filing for divorce. It’s important that you understand your state’s specific laws. Unfortunately, for many couples, divorce will be a complicated and frustrating process, especially if you were together before your marriage was legal. When the same-sex couples attempts to go through a divorce in various states in the country, the two partners can encounter numerous complications. Many of these include the standard issues that a judge may not fully understand when they are normal for opposite-sex couples such as child custody, spousal support and the division of assets. The same-sex couples usually has another problem in the duration of the marriage that can also confuse and hold up the proceedings because this date may not exist at the point the two parties became legally married.
In every divorce, a judge will divide a couple’s marital property and debts between the spouses. For same-sex couples who were living together before marriage became legal, the date of the marriage may create an unfair property settlement between spouses. In situations where one party bought the property before the marriage, the court may categorize it as separate property, which is immune from property division and normally awarded to the spouse that purchased the item. Some courts recognize that discriminatory laws restricted couples from getting legally married, so a judge may split the value of the camper. However, property division is based on a judge’s discretion (and state-specific factors), so there’s no guarantee that you’ll be walking away from your relationship with anything your spouse purchased before the date of your wedding.
Custody and Child Support
Unfortunately, when a relationship ends badly, the same people who fought for marriage equality may use discriminatory parentage laws against an ex-spouse. This is especially common in custody battles involving same-sex couples. If you can work together to create a parenting plan with your spouse, you could avoid a tumultuous legal battle over the children. Many couples decided to start a family prior to marriage equality, and without a legally recognized relationship, most found it almost impossible to adopt a spouse’s biological children. If the other parent never legally adopted the children, the courts in most states won’t award any parental rights, including visitation, to the non-biological parent. In cases where the couple decides to have and raise the child together, this can be devastating to the other parent. Because marriage equality is so new, it’s impossible to predict how all courts in every jurisdiction will handle custody cases where a child was born to one spouse during a same-sex marriage. In heterosexual marriages, if a child is born during the marriage, the court presumes the husband is the father. Ideally, the court would make the same presumption in same-sex cases, but the outcomes may vary depending on the state.
Child Custody and Visitation
Hiring a lawyer for a same-sex divorce is crucial when it comes to child custody or visitation rights. The lawyer becomes even more important if the spouse has no biological rights or legal parental rights in the state. He or she will need to have the lawyer explain the issue and why visitation or joint custody is in the best interests of the youth. Some judges may even require income statements and proof through evidence that shared custody or visitation with the child helps his or her development and well-being. The lawyer is invaluable when presenting the valid argument to the judge for this matter.
The issue of spousal support or, alimony becomes complicated in same-sex relationships if a couple was together for many years before the laws allowed them to legally marry. Judges usually award alimony to a spouse if there’s a financial need and ability to pay, but will use discretion and a variety of factors before deciding. Generally, the longer the marriage, the more likely it is that a judge will award spousal support to a lower-earning or non-earning spouse. But what happens if the laws didn’t allow you to get married, but your relationship lasted for a decade? Because this is uncharted territory, and courts are just now starting to see these cases, it’s difficult to know what a court will do in every situation. In some states, the court will add the additional unmarried years to the end of the legal marriage before deciding spousal support. In others, judges won’t consider any relationship outside of a legal marriage. And in some states, the supported spouse may ask the court to award “palimony,” which is financial support for unmarried partners. The claim for palimony would be based on the years the couple spent living together before they legally married.
One of the best ways to deal with divorce is to work with your spouse to settle the entire divorce outside of court. Many courts offer a service to couples called mediation, which is a voluntary process that allows both spouses to discuss what they want out of the divorce. Judges have the authority to decide property division, custody, and support issues, but only the couple knows what’s best for their family situation. Creating a settlement agreement is the easiest and least expensive method for keeping control in your divorce.
The Duration of the Marriage
One complication that many LGBT couples have when attempting to get a divorce is when the legal marriage actually began. This is not usually the date the two became legally a couple in the eyes of the law in the state. Some states permitted same-sex marriages before the country provided this opportunity in 2015. However, the relationship may have begun long before this date, and divorce can reveal the true date that the state would consider the legal marriage such as ten or even twenty years before. However, the judge must understand this to apply a different specific date, or he or she may only use the point that the state accepted the marriage.
The State Problem
There are some issues that still exist based on the state where the couple wants to get the divorce. Some of these range from the courts understanding how to proceed through same-sex marriage dissolution to spousal support. A lawyer is often necessary to help present an appropriate case within the state. Some problems exist when the state does not know how to apply duration of the marriage to the divorce. If the judge has some bias against the LGBTQ community, this can also lead to further complications. The lawyer hired for the divorce can usually assist in numerous ways.
The Alternate Divorce Resolution
An ADR is usually the route that many couples will seek when the standard state divorce becomes complicated. With an ADR, both parties can seek a process such as mediation that is beneficial for both spouses, provides an informal manner to communicate and help resolve the issues in the marriage. Many of these include child custody and visitation, spousal and child support and the division of property. With an ADR, the couple can accomplish the goals of these issues and reach a binding agreement that does not require the standard courtroom appearance from the spouses. Some states have different processes that are through an ADR which are only possible in that state. Many of the requirements involve the spouses to remain in the state for a certain time in separate households during the initial processes of the divorce. The lawyer hired for the case is usually the person that explains that these alternatives exist and how to use them to end the relationship peacefully and amicably legally. Legal support can also help amend documents, review paperwork that requires legal action and file petitions to the courts if necessary. If the state does not permit a normal divorce process for the LGBTQ community, the lawyer can find another way oftentimes.
Same-Sex Divorce for Non-Residents
In recognition of the challenge same-sex couples faced getting divorced; many states that permitted same-sex marriage also allowed non-resident same-sex couples to divorce. For example, Utah requires that at least one spouse be a resident of Utah for at least six months prior to filing a petition for dissolution of marriage. However, Utah also allows non-resident same-sex married spouses to dissolve their marriage if they married in Utah and neither spouse lives in the state. The couple must file for dissolution in the county in which they married.
Dissolution of Domestic Partnerships
Despite the Supreme Court’s historic ruling, some same-sex couples may still be caught in a state of limbo if they choose to end their partnership. For instance, many same-sex couples who did not have access to marriage opted for civil unions or domestic partnerships instead. While legally similar to marriage, not all states recognize these types of arrangements and as a result may not be able to dissolve civil unions or domestic partnerships. It’s not quite clear how state governments will respond to the sweeping changes in marriage law, including access to divorce by partners in civil unions.
Considerations for Same-Sex Divorce
After several years of fluctuating laws and status, the matter is finally settled at the federal level. But it’s important to refer to your state’s laws if your situation is particularly complex. Those in civil unions, for example, may need to establish residency in the state where the union was performed in order to dissolve the relationship. But if you were legally married, you may now get divorced in any state. With the support of a lawyer, a spouse in a same-sex marriage can find a way to end the relationship legally and still reach an agreeable remedy to the process. By hiring a lawyer, the same-sex spouse can discover the best path through a divorce.
Reasons To Hire A Divorce Attorney
Going through a divorce without the help of an attorney can be challenging. Divorce lawyers are able to provide their clients not just legal help, but a friendly shoulder to lean on. To get the best legal help, always hire a local divorce attorney.
• Settle an agreement: Couples who are looking into getting a divorce rarely see eye to eye. Coming up with a mutual agreement is a hard feat. Individuals going through separation may not want to give into the other’s agreement and vice versa. This ongoing tug of war could go on forever. With the help of a divorce lawyer, couples are able to come to an agreed settlement much faster.
• Serve as a mediator for you and your spouse: It isn’t uncommon for couples going through separation or divorce to have pent up anger, frustration or contempt for the each other. Negative personal feelings often lead to fights, adding fuel to the flame. Divorce lawyers can redirect these negative emotions by taking on the role as a mediator.
• Help lessen the emotional stress: Going through a divorce can be emotionally, physically and emotionally draining on individuals. By hiring a trustworthy divorce attorney, you are able to lessen your load and less part of your burden. Your divorce attorney will be there to help take care of the details, keep you focused and hold your hand throughout the process.
• Fast divorce procedure: When going through a divorce, the last thing any couple wants is to prolong the divorce. With the help of a reputable family lawyer, the whole process of divorce and coming up with an agreed settlement goes by much smoother and faster.
• Determine if you getting your fair share: A crucial part of getting a divorce is determining how to divide property, assets and so forth. Different states have different laws for how to divide property and assets.
• Help you with child custody laws: Determining child custody is one of the most important factors for couples going through a divorce.
• Inform you of what you are entitled by law: Getting a divorce in Utah, you may be entitled to more than just marital assets. A knowledgeable attorney will inform you of everything you are entitled to by Utah law.
• Go over important legal documents: To file for divorce in Utah, you must submit and fill out the right legal documents for your local court to approve. Hiring a divorce attorney can help you keep track of these forms, help you fill out the forms and keep you moving smoothly along the divorce process.
• Protect your rights: A divorce lawyer is experienced with divorce law. An experienced lawyer will know all the ins and outs of the process, know what you are entitled to and know what your rights are. By hiring a trustworthy attorney with your best interest in mind, you are guaranteed to have your voice heard and your rights protected.
LGBT Divorce Lawyer
When you need a divorce attorney who focuses on the needed of LGBTQ+ Individuals, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506