Divorce for LGBTQIA+ Couples: Avoiding Potential Pitfalls

If you’re considering ending your marriage, you may wonder if the process is different for LGBTQIA+ couples. Massachusetts law doesn’t distinguish between same-sex or gay marriage and heterosexual unions. Still, some legal challenges remain when it comes to divorce for LGBTQIA+ couples.

LGBTQIA+ Divorce Rules Lag Behind Same-Sex Law in Massachusetts

Our state is a long-time leader in LGBTQIA+ issues. Massachusetts was the first state to allow gay marriage in 2004, a decade before it was legal nationwide. At the time, Massachusetts was one of just six locations globally where same-sex couples could marry.

Of course, the right to marry goes hand in hand with the burden of divorce for LGBTQIA+ couples. While Massachusetts law treats same-sex and heterosexual marriage the same, the playing field isn’t yet level when it comes to divorce.

Child Custody in LGBTQIA+ Divorces

Biological and adoptive parents have a significant advantage in custody battles in Massachusetts. If you’re a non biological parent and haven’t formally adopted your child before divorcing, the court treats you like a stepparent, granting you few legal rights.

Thankfully, the courts have recently started recognizing the status of de facto parents.

In 2017, the Massachusetts Supreme Judicial Court decided that non biological parents in same-sex marriages could have visitation rights over the objection of the biological or legal parents if the loss of the relationship would harm the child.

State courts have also granted custody to stepparents over biological parents under the Massachusetts guardianship statute when the stepparent is the clearly superior caretaker.

Alimony for LGBTQIA+ Couples

The duration of alimony or spousal support payments for both LGBTQIA+ and heterosexual couples depends on the length of the marriage. While this treatment seems equal at first glance, it’s unfair if you and your partner lived together but couldn’t be legally married prior to 2004.

In such cases, you may be able to claim an exception in the Massachusetts alimony statute. This provision allows the court to increase the marriage duration if you show that your economic marital partnership started during the cohabitation period.

Dividing Marital Assets in LGBTQIA+ Divorces

Massachusetts law considers assets that both spouses own to be “marital” and therefore subject to marital division, regardless of the date of acquisition.

In practice, however, the courts have traditionally looked to when you or your spouse acquired the asset. Oftentimes, the court recognizes as marital-only property those assets acquired during your marriage.

That could be a problem if you and your spouse acquired substantial assets as a couple prior to 2004, such as if you bought a home together. Things become even more complicated if you cohabited in a state that banned gay marriage or allowed civil unions or domestic partnerships before moving to Massachusetts. A divorce lawyer with experience in LGBTQIA+ divorce can help you resolve asset distribution issues with the court.

Contact an Experienced LGBT Divorce Attorney in Massachusetts

Ending your marriage can be daunting under any circumstances, but divorce for LGBTQIA+ couples comes with unique challenges.

At Koiles Pratt Family Law Group in Salem, MA, we can talk you through the LGBTQIA+ divorce process and explain your options.

Call us at 978-744-7774 to schedule your consultation.