By: Marissa C. Winch, Esq.
Although the right for same-sex couples to marry has been legal for well over a decade, divorce has not quite caught up. Today, same-sex couples endure complications that heterosexual couples do not when seeking to dissolve their marriages. From challenges surrounding custody and parental rights to disputes surrounding alimony, same-sex divorce has fallen significantly behind.
To provide a bit of clarity surrounding the topic, we have identified a few key considerations to keep in mind when considering beginning the divorce process as a same-sex couple.
One of the most significant challenges same-sex couples face is how the courts recognize the length of their relationship. While this difference may seem negligible, this distinction matters. During a divorce, the court typically bases decisions about property division, alimony, and parental rights on the legal duration of a marriage. However, for couples who shared various assets before their partnership could be legally recognized through marriage, the outcomes will likely be inequitable.
Additionally, divorce laws vary significantly by jurisdiction. In some areas, outdated statutes or a lack of precedent for same-sex divorces may complicate proceedings. For example, couples who got married in one country but live in another may find that their marriage is not fully recognized, creating confusion over which jurisdiction should process the divorce.
To navigate these complexities successfully, it’s critical to hire legal professionals who are specifically experienced with LGBTQIA+ family law, as they can be sure the legal process reflects the true nature of the relationship at hand.
Along with outdated legal systems, LGBTQIA+ couples also face additional emotional and social challenges. For same-sex couples who had to advocate for their right to marry, divorcing their spouse may feel not just like a personal loss, but also a political one. Some couples may even feel pressured to maintain the relationship for the sake of visibility or their community.
Moreover, divorce can disrupt a couple’s social networks, leaving one or both partners without crucial emotional support. In some cases, mutual friends and community members may feel unsure how to offer support or feel pressured to pick a side.
Some LGBTQ+ individuals also experience a resurgence of internalized homophobia or shame during divorce, especially if they feel judged by peers or if the relationship helped them anchor their identity. This emotional weight can compound the grief that typically comes with the end of a significant relationship. Finding LGBTQIA+ affirming therapists, support groups, or peer networks can make a profound difference in an individual’s emotional healing, which is equally as vital as legal resolution.
One of the most emotionally and legally complex issues for divorcing same-sex parents comes into play when only one partner is a legal parent of the children in the family. Couples who use surrogacy, adoption, or assisted reproduction methods may face added scrutiny or legal ambiguity during custody proceedings.
Additionally, while both partners may have raised a couple’s child or children from birth, the law may only recognize the biological or adoptive parent’s rights. Unsurprisingly, this can result in painful custody disputes or limited visitation rights for the non-custodial parent, regardless of their role in the child’s life.
To avoid these issues, it’s vital that both partners establish legal parentage as early as possible through second-parent adoption or parentage judgments if possible. If this is not possible, it is all the more important that the divorcing couple hires family law professionals who understand LGBTQIA+ family dynamics to help protect the best interests of the child(ren) and parents.
The child’s well-being should always be top priority for families undergoing a divorce, but for families with LGBTQIA+ children, including those who may be considering undergoing gender transition, additional considerations come into play. These factors can and should impact how child support is determined and how parenting responsibilities are allocated.
For children identifying as transgender or non-binary, gender-affirming care such as medical and psychological support (including hormone therapy) will be essential to their health and development. Services like these demand substantial costs and require long-term planning, especially when such care is not fully covered by insurance.
As healthcare knowledge has continued to evolve, the courts now expect that parents of transgender children will contribute to the expenses required to support gender affirming healthcare. Custody and child support agreements are now expected to recognize these needs, with the courts weighing a parent’s willingness to prioritize a child’s mental and emotional well-being. If a parent does not actively support their child’s identity, that will likely come into play with visitation decisions. The court intends that divorcing parents are supportive coparents when it comes to a child’s gender identity so as to reduce harm and conflict. For this reason, divorce agreements are expected to include clear terms surrounding medical care by outlining how the parents intend to support the child’s identity in the future.
It should be noted that if one parent is found to be unsupportive of their LGBTQIA+ child, the court will likely side against them. With research continuing to demonstrate the negative mental health consequences for LGBTQIA+ individuals to be raised in unsupportive environments, judges weigh this type of capacity heavily in their decisions. If the court finds that a parent is denying or attempting to interfere with a child’s gender expression or sexual orientation, they may deem the parent harmful to the child and, accordingly, reduce custody.
Some factors the courts consider in making their custody decision for a LGBTQIA+ child include:
Raising LGBTQIA+ children often requires additional advocacy and awareness, especially during divorce. Hiring a qualified attorney who understands these issues ensures that custody and support agreements reflect the best interests of the child.
Divorce is never a simple process, but for same-sex couples and LGBTQIA+ families, it can involve additional layers of legal, emotional, and social complexity. From navigating outdated laws to addressing the unique needs of LGBTQIA+ children, every aspect of the separation must be approached with care, empathy, and informed legal guidance.
While divorce can feel like an ending, it can also serve as a new beginning for renewal and self-discovery, especially for LGBTQIA+ individuals. Divorce can open the doors to reclaiming personal identity, rebuilding community ties, and gaining autonomy. With the right support and resources, individuals can move forward with dignity, resilience, and hope for the future. No one should have to navigate this journey alone, and no family should be left behind by the systems meant to serve them. Contact The Colwell Law Group today to receive the support you deserve, for you and your family.
At the Colwell Law Group, our number one priority is always our clients. The members of our team have decades of combined experience in negotiating and trying family law cases. We are able to use our experience and our knowledge of the courts and New York family law to act as advocates for our clients. Our lawyers are dedicated to serving our clients’ best interests while also allowing them to feel heard and understood. We want to ensure that they trust us and understand why we do what we do. Colwell Law has numerous attorneys who are experienced in Family Law that can help put you at ease. Call for a free consultation.
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