For LGBTQIA+ (lesbian, gay, bisexual, transgender, queer/or questioning, intersex, asexual, and others) individuals and couples, the path to marriage and divorce are not easy and is often way less clear than it is for heterosexual women and men. The main reason is that many states still do not recognize same-sex marriages or civil unions, making filing for a separation or legal divorce as complicated as their marital status, the law of the land. Additionally, some U.S. states define what constitutes a legal marriage yet have no formal procedure for dissolving a same-sex union. Add to those that most states don't have laws explicitly addressing how property should be divided in cases where one spouse wants out of a marriage, but the other doesn't want to end things legally. E.g., one partner wants alimony or spousal support but can't get that from his/her ex because they weren't married long enough before getting divorced. Let’s face it, legal mumbo jumbo for our LGBTQIA+ sisters and brothers. A closer look:
A brief history of same-sex marriage.
Same-sex marriage has been a hot topic, political issue for decades, but the Supreme Court's ruling in 2015 made it legal nationwide. Before that decision was made during the Obama administration, many states legalized same-sex marriage for their citizens, while others did not. Today, all 50 United States are mandated to recognize same-sex marriages in all shapes and territories (including Puerto Rico); however, not all do (more on that in a bit).
Marriage equality in the United States.
· If you're gay and married or are in the process of getting divorced, you must know your rights as an LGBTQIA+ person. The following information is provided for those wanting to learn more about marriage equality in America from The Human Rights Campaign.
· Marriage equality in the United States was first legalized by the Supreme Court when they ruled that same-sex couples have a constitutional right to marry on June 26, 2015. This decision established that all 50 states must recognize same-sex marriages performed in other states or countries where it is legal (like Canada).
· Currently, 15 other global nations allow same-sex marriage: Argentina, Belgium, Brazil, Canada, Colombia, Denmark, Finland, France, Iceland, Ireland, New Zealand, Portugal, Scotland, Slovenia, and South Africa.
· You may have heard of marriage and civil unions, but what's the difference? Marriage is a legal union between a man and a woman. Civil unions are like marriages, except they are between two people of the same sex.
What happens if your state doesn't recognize gay marriage?
· If you're in a same-sex marriage, and even though the landmark 2015 Supreme Court ruling made it the law of the land, there are still 13 states in which it has not been actually legalized: Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Dakota, Ohio, South Dakota, Tennessee, and Texas.
· If you reside in a state that does not recognize gay marriage, several options are still available. You can file for divorce in any form (as long as it's legal). You could also file for divorce in your home state (or the original state of your nuptials) to keep things easy for everyone involved.
· Additionally, if one partner has moved out of her/his state of residence after getting married and then moves back into the original shape where they were born or raised before moving out again, it’s considered a "domicile." In other words: If a person lived somewhere else for a while but returned home because they wanted to be closer in proximity to their children and then got married while living there, this would count as having established residency in both places over time (even though technically there was only one marriage).
How do you get divorced if there are no statewide guidelines?
· The process can be complicated if you and your partner are in a state that doesn't have LGBTQIA+ divorce laws. Although it's essential to understand your state's laws, it's also crucial to know that some states have different rules for gay couples than straight couples.
· There are no national guidelines or rules for LGBTQIA+ divorce because each state has its own set of rules surrounding these situations, and sometimes those rules vary from one city or county within the same form. No one ever said marriage – or in this case, divorce – is easy, right?
When is it time to file for divorce?
If you are in a same-sex marriage, civil union, or domestic partnership, and your state doesn't recognize the union, you can file for divorce if:
· Your spouse has been missing for at least three months.
· Your spouse abandoned the family home without the intention of returning (or left because of abuse).
How should property and assets be divided?
The first step to dividing your property is to create a list of everything you own. This includes real estate, cars, furniture, electronics, and other personal items. Then determine who will get what based on what's fair (and legal). If the couple has children together or shared pets during their marriage, these items may be considered marital property that needs to be divided.
This is another asset of divorce essential to understanding your rights as LGBTQIA+ individuals and couples. You may have heard that marriage equality is the law of the land, but there are still many nuances to navigating divorce as an LGBTQIA+ individual or couple.
Before filing for divorce, it's a good idea to research what protections exist in your state and whether they apply to you personally (or to both individuals). For example:
· Do same-sex couples have equal access to alimony?
· Can I file for legal separation if we're not married yet but planning on getting married someday soon?
· Does my spouse need my consent before filing for divorce against me?
There you have it in a nutshell. Is it all fair? No, but what in life is it? Stay informed, keep a level head, and educate yourself, then learn even more. Knowledge is key. You have A LOT to think about during this process, and we hope these tips will help you navigate it without too much angst. If you're ready for more information or want to discuss your situation with an LGBTQIA+-friendly attorney, please go to www.lgbtdivorcelawyer.com or call (844) 817-6273.
And BTW…Happy Pride Month to everyone 🏳️🌈
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