How Does A Same Sex Divorce Work?

In today's society, divorce is an inevitable eventuality of many marriages. This is also likely to include many same sex marriages. But is the law on same sex marriage the same as the law on traditional marriage?

Same Sex Divorce In States Without Same Sex Marriage

Not all states have laws on the books recognizing same sex marriage. This also means that they don't have laws on the books recognizing same sex divorce.

While you might think that a state that opposes same sex marriage would be quick to grant a same sex divorce, this is not the case. A judge can only take actions that are within the laws of the state. If same sex divorce isn't on the books in those states, the judge doesn't have a legal basis for granting the divorce even if they want to.

Can You Get Divorced in Any State?

While it's historically been possible to get married in any state — think of Las Vegas weddings — the same is not true of divorces. Even though same sex couples have been able to go to other states to receive legal weddings, they cannot do the same for a divorce.

Most states will only grant divorces where at least one of the spouses is a resident of that state. Usually, this comes with a minimum time period of at least a few months that they must be living in the state to receive a divorce.

Some states have tried to give everyone access to a divorce by adding an exception for same sex spouses. They may either completely waive the residency requirement, waive it for people who were married in that state, or waive it for former residents of the state. Check with a local family law attorney or the clerk of court for details.

How Exactly Does Same Sex Divorce Work?

The process for a same sex divorce is identical to a traditional divorce. A petition must be filed with the court, and the judge will decide questions of property division, alimony, and other divorce issues.

The biggest difference is when children are involved. The law still grants parental rights only to biological parents by default. Visitation will not be ordered without parental rights as a marriage does not establish parental rights. Non-biological parents will only receive parental rights if they have formally adopted the child.

To get assistance with a same sex divorce or tolearn more, contact a local family law attorney today.