Last month’s U.S. Supreme Court ruling that the U.S. Constitution guarantees the right for same-sex couples to marry in all 50 states paves the way for the potential dissolution of at least some of those marriages in unchartered territory of same-sex divorce.
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According to The Williams Institute, a national UCLA Law think tank dedicated to research on sexual orientation and gender identity law and public policy, the rate of dissolution of legally-recognized same-sex partnerships is roughly comparable to the rate of divorce for heterosexual couples.
So how will same-sex divorce differ from traditional divorce?
“We’re not 100% sure where it’s going to go,” said Stann Givens, founding partner of Givens, Givens and Sparks, a family law firm based in Tampa, Florida.
While he believes the division of assets will be the same as in traditional divorce, there may be some issues with child custody, because of different ways that same-sex couples have children.
“Some of these issues are not so clear, and will have to be cleared up with litigation later on,” Givens said.
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He said the fact that only one parent (at most) in a same-sex marriage is likely to be biologically related to the child may present some challenges with custody.
Philadelphia divorce attorney J. Conor Corcoran has launched a division of his firm that’s strictly for lesbian, gay, bisexual, transgender or queer divorces (LGBTQ). According to his website AdamVs.Steve.com, Corcoran bills himself as the nation’s first LGBTQ divorce attorney.
“It’s really hard to predict what’s going to happen,” Corcoran said. “They’ve been waiting so long to get married, it may be awhile until they can get divorced.”
Celebrity divorce attorney Vikki Ziegler agrees.
“Gay divorce has so many different nuances,” said Ziegler, professor of same-sex marriage and prenups at Fordham Law School and CEO of divorcedating.com.
“There are over 1,300 federal privileges that a husband and wife are allowed to take versus same-sex couples, who are still in a quandary as to what federal guarantees they receive,” she said. Some of these include federal tax filing and getting medical insurance benefits for an entire family.
“The states now have to recognize same-sex couples and afford them all of the state privileges that heterosexual couples receive,” Ziegler said. “But things will have to catch up quickly to ensure that there’s uniformity.”
Ziegler said she believes there will be challenges relating to custody, especially with regard to adoption and sperm donors.
“That will take time for the courts to fully grasp and understand how to resolve these issues with same-sex couples,” Ziegler said.