Since 2015, same-sex couples have the right to marry in all states. They now have the same separation rates as heterosexual couples. Couples who entered a civil union or domestic relationship before same-sex marriage was legally recognized have greater legal obstacles when they divorce.
Before the Supreme Court legalized same-sex marriage, a hodgepodge of state laws governed their relationships. Couples may have started with a civil union in a more progressive state, later became domestic partners and then married.
Many courts are still trying to determine which relationship status governs how property will be divided in a divorce settlement. Courts must resolve whether property jointly owned in their first legal union or when their marriage became legal governs.
Also, multiple relationship statutes can pose complications when couples divorce but do not disclose and dissolve earlier relationships. Any civil union or domestic partnership status that remains intact could prevent them from remarriage after divorce. They may be legally responsible for making medical decisions for their former partner in an emergency years later.
Marital presumption laws can complicate child custody. Typically, a child born to a marriage is presumed to be the legal child of both spouses. In some states, this does not always apply to same-sex couples.
There are also issues when only one spouse is the biological parent. This may involve, for example, lesbian couples where one spouse went through artificial insemination or same-sex couples where one of the husbands gave his genetic material to a surrogate. This issue may be even more complicated for lesbian couples where one spouse was artificially inseminated with embryos from her spouse and a sperm donor.
These problems may be avoided if the spouse who is not the biological parent completes adoption documents. The spouse who is not biologically related to the child should adopt the child as a stepparent or second parent.
Attorneys can provide options and help spouses address these issues. They can assist them in legal proceedings and settlement negotiations.