LGBT Divorce, protection under the law, remaining issues for LGBT couples

Posted By on Jun 28, 2016 | 0 comments


After the Supreme Court ruling in favor of gay marriage in Obergefell v. Hodges (2015), all American citizens have the equal right to marry their partner of choice and receive the same protections and benefits of that legally binding relationship. However, with the right to a lawful marriage comes the right to a lawful divorce. With the provisions of the new law of the land, LGBT couples have the same opportunity as heterosexual couples to equitably divide their assets under the oversight of the American legal system.

While this may sound cynical at best, the protection of LGBT citizens during divorce proceedings is equally as revolutionary as their right to marry in the first place. The lack of structure to laws preceding the Supreme Court’s ruling meant that the normal structure and order of legal divorce proceedings could at times become disjointed and chaotic.

However, the website of Holmes, Diggs, Eames & Sadler recognizes that, despite this progressive ruling, there are still many issues that have arisen for LGBT couples wishing to divorce. For partners who had been in an informal union for many years prior to their legal union, the equitable division of assets becomes very difficult to determine. How does the property accrued during their relationship prior to their marriage work into their divorce settlement? The court only recognizes assets acquired during marriage as subject to division, and oftentimes the court does not recognize common law marriages in the cases of LGBT couples–leaving the divorcing couple at an impasse.

Child custody presents an even greater challenge to divorcing LGBT couples. Many adoption agencies, prior to the Obergefell v. Hodges ruling, did not allow joint adoptions for LGBT couples. This means that only one parent obtains legal guardianship of the child at the time of adoption, the other parent must go through a separate (and time consuming and expensive) adoption process to be equally recognized as a legal guardian. If these steps are not taken, the child belongs solely to the parent who signed the adoption papers. Without legal guardianship of the child, a parent cannot fight for custody rights and is often at the mercy of the other–legal–parent.

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