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3 Critical Things Not to Overlook in a Same-Sex Divorce

A same-sex divorce can be just as complex as a heterosexual divorce. In many cases, the parties involved may not even realize all the issues that need to be addressed. If you are considering a divorce, it is important to understand all the potential pitfalls to try to avoid them. In this blog post, we will discuss three critical things that should not be overlooked in a same-sex divorce.

1. The Date and Location of Your Marriage Matter

When it comes to divorce, the date and location of your marriage can be just as important as the date of your divorce. Some states recognized same-sex marriages much earlier than others, while others did not want to do so at all.  Of course, the U.S. Supreme Court decision in Obergefell v. Hodges made same-sex marriages legal nationwide in 2015.  However, couples who were married in states that did not recognize same-sex marriages prior to Obergefell could face unexpected problems when trying to separate or divorce.

If you’ve been in a long-term relationship that you’ve always treated as a marriage, but you never actually formalized your marriage with your partner following the Obergefell decision, you may not be able to avail yourself of the divorce laws when you and your partner separate. It’s critically important to consult with an experienced family court attorney in your state if you are considering separation but may not know whether your case will be handled in family court or civil court for asset division.

2. For Parents, Child Custody May Be Just as Complicated

 For many same-sex couples, one parent may have contributed genetic material to create a child carried via surrogacy. However, that parent may or may not have actually carried and delivered the child. For others, traditional adoption is how they choose to build their family.

However, when a same-sex couple decides to divorce, it’s essential to discuss your chosen path(s) to family creation with an attorney to determine how your state’s child custody laws will apply to your situation.  If both parties are not listed on the child’s birth certificate, the family court may or may not be willing to recognize their parental rights in a divorce case.

3. Your Retirement Benefits May Include Your Spouse’s Social Security Benefits

If you are legally married for the required period of time, you may be eligible to make a claim under your spouse’s Social Security benefits when they retire, even if you have never worked yourself, just like heterosexual couples.  If you’ve been legally married to your spouse for at least ten years, you can elect to receive the same amount of Social Security benefits as your soon-to-be-ex, even if you never worked or worked at a lower-paying job for your entire career.

In a same-sex divorce, it is important to make sure that all the assets and debts are properly divided, including any retirement benefits from the government to which you may be entitled. An experienced attorney will be able to help you determine what assets and debts are subject to division in your particular case and will help you to negotiate a fair settlement with your spouse.

Final Thoughts

No matter what your situation and no matter your gender, if you are considering a separation or divorce, it is important to seek out the advice of an experienced family law attorney in your state who can help you to navigate the process and protect your rights.

During your initial consultation with an attorney, be sure to ask specific questions about their experience handling same-sex cases. While many attorneys handle “traditional” divorce cases every day, the number of attorneys who stay current on LGBTQ+ law is much smaller. Therefore, be sure to hire an attorney who devotes time every year to staying educated in this growing area of the law to ensure you have the best representation possible.

If you’re in South Carolina, it’s important to contact an experienced family court attorney like J. Benjamin Stevens today to discuss your same-sex divorce rights.  Even if you aren’t in South Carolina, Mr. Stevens is happy to offer referrals to a well-qualified attorney located in your state.

Ben Stevens has provided exceptional legal counsel and support to people throughout South Carolina for over twenty-five years.  He has been an advocate for same-sex relationships and the LGBTQ+ community, and he has handled a number of divorce and child custody cases for same-sex couples. Our firm is well-equipped to handle all divorce and family law matters, no matter your circumstances.  Contact our office at (864) 598-9172 or SCFamilyLaw@offitkurman.com to schedule an initial consultation.


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Author: J. Benjamin Stevens
Articles have been Reprinted with permission from the charlotte observer and Mike Hunter.

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