Same-sex couples in the United States have achieved several victories in terms of federal benefits and the number of states that allow gay couples to marry legally. Underlying those celebrations, however, is the reality that marriage, even a same-sex marriage, can end in divorce.
However, same-sex marriages have certain peculiarities in the event of divorce. Considering that most family law issues and divorce laws are tailored to heterosexual marriages, same-sex divorce is sailing in some uncharted legal waters. One expert notes that the gay community may be prepared for same-sex marriage but not for same-sex divorce.
Some of the possible drawbacks of divorce between two homosexuals involve presumptive parenthood, taxes and property division. For example, in a heterosexual marriage, the principle of presumptive parenthood assumes that the husband is the father of the child regardless of circumstances. That principle does not apply to gay marriages. In a same-sex divorce, one partner can separate the child from the other because no law protects both parents.
Another problem with same-sex divorce involves taxes. When the Defense of Marriage Act was overturned, filing joint taxes became advantageous for many gay couples. However, if one party has a huge tax debt before a divorce, filing jointly may add up to some serious tax consequences.
The same goes for the division of assets and marital property. A same-sex divorce may hurt one or the other partner's financial stability because all assets and liabilities-including vehicles, houses, furniture, bank accounts, retirement accounts and debt-are subject to be divided equally.
As the definition of family dynamics and family law concerns evolves in Orange County, California, and around the nation, same-sex divorce will become an ever bigger issue. Regardless of the harsh reality that a legal same-sex marriage may result in a divorce, the result still depends on the people involved, how they handle the breakup and how they move on afterward. Especially in the area of same-sex marriage and divorce, the guidance of a family law attorney can be invaluable.
Source: Huffington Post, "Same-Sex Couples Are Ready to Get Married, but Maybe Not Divorced," Colleen Logan, Dec. 6, 2013