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Same-Sex Marriage Means Same-Sex Divorce

By Channe Coles on Mar 24, 2016 at 11:53 PM in Santa Barbara Divorce Attorney, California Divorce Law

Same-Sex Marriage Means Same-Sex Divorce

Divorce Doesn’t Discriminate

Same-Sex Marriage Means Same-Sex Divorce

It’s difficult to discuss the area of same-sex divorce in a country where same-sex marriage is constantly in flux. As of June 27, 2013, same-sex marriages were once again legal in California, and as of June 26, 2015, same-sex marriages are legal in the United States. These decisions are the result of the case Hollingsworth v. Perry and Obergefell v. Hodges, respectively. The ruling as a result of Hollingsworth v. Perry is one of the most significant developments in California family law since Proposition 8 bared same-sex marriages back in November 2008. The holding from Obergefell v. Hodges continues to be controversial in many states as it overturned the long-held ruling of precedent Baker v. Nelson. Because same-sex couples are now able to get married in this state, they are also able to divorce under the same laws as heterosexual couples.

To get a divorce in Sana Barbara County, you must first ensure you have established proper residency in the county for the court to take jurisdiction over your case. Divorce jurisdiction usually requires residence for six months to one year prior to filing. California requires one of the divorcing spouses to reside in the state (or county) for at least 6 months prior to filing a dissolution of marriage petition.

So far, same-sex couples divorce only half as often as do heterosexual couples, according to a study by the Williams Institute, a Los Angeles think-tank that studies legal issues related to sexual orientation. But, that may change as same-sex marriage becomes more common. As more gay couples divorce, the laws will likely catch up—eventually, experts say.

Avoiding the Jurisidictional Pitfalls of a Same-Sex Divorce

Same-Sex Marriage Means Same-Sex Divorce

Nobody wants to end up in a divorce, but if you plan to avoid the following legal and financial pitfalls facing many same-sex couples today, your path through the process is likely to be smoother if you follow the below recommendations:

  1. Before the marriage, it is strongly suggested you right a prenuptial agreement to settle any property and other disputes in advance.

  2. If you married without a prenuptial agreement, then consider a post-nuptial agreement. 

    A couple that married after a long period of living together and then decides to divorce may face a difficult property settlement. This is because a lot of assets may be commingled, but still not legally joint. Because it was impossible for gay couples to legally marry until quite recently, many find themselves in that situation. A written post-nuptial agreement that details who owns what and who gets what in the event of a split is essential, especially if one or both parties have substantial assets. 

  3. Anticipate custody disputes in the event of a divorce and act now to protect your custodial rights. 
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    Consider the case of New York residents Mercedes Counihan and Molly Bishop, who married in Connecticut in 2009. In 2010, following a meticulous search for a sperm donor who shared Counihan's biracial heritage, Bishop gave birth to a son. Two years later, the two women are battling for custody. Counihan's name is on the child's birth certificate, but she did not legally adopt him, a move that lawyers say would have protected her rights as a parent. Counihan said she has now spent $100,000 arguing for those rights. "When the relationship breaks up and the non-biological parent wants to share custody [but] the biological parent says no, it's a huge problem," said Joseph Milizio, managing partner at Vishnick McGovern Milizio in Lake Success, N.Y., and head of the law firm's LGBT practice. If you want to avoid a damaging scenario, have the non-biological parent legally adopt the child at the time of birth. 


    "The number one thing is to do the second-parent adoption," said Michelle Kahn, an attorney at New York-based Kahn & Goldberg and an expert on gay and lesbian family law. "Whether the marriage is recognized or not, that adoption is going to be recognized," she said. "[Non-same-sex marriage states] may not like it, but they're going to recognize it."

Forward Thinking Representation and Preparation to Address Your Unique Challenges

Same-Sex Marriage Means Same-Sex Divorce

Legalization of same-sex marriage in California and the U.S. was both highly anticipated and long overdue. Finally, same-sex couples are now treated as equals under state and federal law and can enjoy the same rights, benefits and privileges afforded to opposite-sex couples. However, with the advent of legalized marriage, comes the advent of divorce for at least some of those same-sex couples. At the Law Office of Channe G. Coles, we pride ourselves at being ahead of the curve and in preparing ourselves and our clients for the unique challenges which same-sex couples face in a divorce, such as custodial rights as a non-biological parent, and sometimes complex division of assets and debts. 

For questions about your same-sex divorce, please call the Law Office of Channe G. Coles today for a free confidential consultation.

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