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Is The Legal Process For Divorce Different For Same Sex Marriages?


Marriage equality for same sex couples is still fairly new. It’s so new, in fact, that most people aren’t quite sure whether all of the legal aspects of a same sex marriage are the same as those experienced in a traditional marriage. This is, of course, largely due to years of widely varying state laws and inequitably distributed civil protections. In today’s climate though, a clearer picture has been painted of the rights of married individuals. In theory at least, the rights of a same sex couple are identical to those of an opposite sex couple and thus should find the divorce process to be quite similar.


History of Same Sex Marriage

The main reason that there are still so many questions surrounding same sex divorce is that the process was quite complex until relatively recently. It used to involve not only determining whether the state in question allowed same sex marriage, but whether the states in which the two parties lived at that time had also legalized same sex marriage. Many couples found themselves in a legal no-man’s land in which their relationship was not legally recognized but impossible to legally bring to an end.


Current Laws

In the vast majority of states, this is no longer an issue. Same sex couples are able to divorce relatively freely, so long as they follow the same legal guidelines as other couples. This doesn’t necessarily make divorce easy, but it does create a situation in which same sex couples can follow the same basic steps as any other couple. This has been a huge move forward in the name of equality, and thus something that is important to celebrate. As odd as it may seem, having the right to bring a relationship to an end in the same manner as other people is a right for which many fought.


Related Legal Issues

There are, however, a few remaining difficulties. Issues of property distribution, for example, are difficult if the parties have had a prior long-term relationship that was not previously legally recognized. Likewise, custody issues are far more complex for same sex couples who have not gone through a legal adoption process. It is not the divorce that is necessarily complex in these cases, but rather the issues surrounding the divorce. Not every situation that was created by the lack of legal equality has gone away and many couples find themselves dealing with the fallout of a system that no longer exists.


Future Legal Challenges

While most challenges to marriage equality have now quietly faded away, there are still states in which future challenges may occur. This unfortunately means that the current equitable system might be suspended in states as they bring constitutional challenges before the federal courts. While it seems unlikely at the moment, one must only look at the cases brought in states like Alabama in the wake of the Supreme Court decision that legalized same sex marriage. As long as there is a possibility of a constitutional challenge, there is a possibility for same sex divorce to once more become incredibly complicated.


Consult a Divorce Attorney

If you are going through a divorce, it’s always a good idea to speak to an attorney such as the divorce attorney Phoenix AZ locals trust. While a same sex divorce is not necessarily always more complicated, the issues that surround it may require extra legal help. With expert advice, you might find that your divorce can be handled in a manner that guarantees you the equal protections under the law. Perhaps the most important thing a lawyer can bring you is an updated perspective on an ever-changing legal landscape.


Hildebrand Law A special thanks to our authors at Hildebrand Law for their insight into Family Law.


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