State laws vary greatly across the U.S., and individuals’ rights are directly impacted everyday by the Defense of Marriage Act (DOMA) on the federal level. Given the disparity among state and federal laws, it is especially important the same-sex couples are properly informed and educated about potential issues that can arise when a same-sex couple gets divorced.
With the law governing same-sex marriage changing so rapidly, same-sex couples need to be aware of the latest developments in their state and any other state to which they are contemplating relocating. For example, if a same-sex couple is married in Washington, D.C., but is contemplating a move to Pennsylvania, the couple should be aware that their marriage will not be recognized in Pennsylvania as the state has affirmed DOMA on the state level, and therefore does not recognize same-sex marriage. This can present complications if the couple relocates to Pennsylvania and later seeks a divorce because, unlike a heterosexual marriage, the dissolution of the same-sex couple’s relationship will take place in the civil courts, rather than the family court.
Another issue same-sex partners should be aware of is how the state in which they reside will treat each partner when it comes to child custody in the event of a divorce. In a situation where a same-sex couple is raising a child who is the biological child of only one parent, the non-biological parent may face difficulty establishing their custody rights depending upon the laws of the state in which they reside. In many cases, custody complications can be avoided long before it becomes an issue if the non-biological parent adopts the child.
Divorce is not an easy process for any couple, but a same-sex couple considering divorce can be faced with particularly complex issues when the relationship dissolves. Same-sex couples considering divorce should consult with a knowledgeable and experienced family law attorney to identify unexpected issues that may be encountered in the process of dissolving the relationship.