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Same-Sex Marriage Means Same-Sex Divorce

The family law attorneys at Protokowicz & Rodier discuss the challenges facing same-sex couples wishing to legally separate.

The 2015 Supreme Court ruling on same-sex marriage has continued to affect US courts in unexpected ways. While same-sex couples across the country lined up to become officially married, others exercised their newly established rights to file for divorce.

In New Orleans, on the same day that the Obergefell decision was handed down, same-sex couple  . The couple had been waiting for many years, and filed their divorce papers prior to the court’s first gay marriage. Gay marriage had previously been banned in Louisiana.

Originally, the couple were married in Massachusetts, where gay marriage was legalized prior to the 2015 ruling. But, upon returning to their home state, their marriage was not recognized. As a result, when Baus and Wellman decided to separate, they did not qualify for divorce filing under Louisiana state law. Filing in the state where they were married was also not an option, as Massachusetts requires that divorcing couples provide proof of residency.

Prior to last year’s ruling, same-sex couples wishing to separate faced a number of obstacles frequently resulting in the two parties being irrevocably bound by finances and other assets.  Though the 2015 ruling had a positive outcome for many, it has not solved all legal obstacles for some same-sex couples.

Because same-sex couples married and cohabited long before the Supreme Court ruling, it can be difficult to determine when their assets legally became joint property. As this issue of retroactive property has yet to be legally solved, the classification of joint property at the time of divorce will range based on the home state of the couple in question. For instance, in states that recognize common law marriages, property becomes jointly owned once a union qualifies as a common-law marriage, based on length of cohabitation. In states that recognize only official marriages, property can only be considered joint once the marriage has occurred. Any previous joint acquisitions, therefore, do not qualify for allocation arbitration through divorce court. Maryland does not recognize Common Law marriage.

The need for divorce law reform is not a new issue – laws governing divorce in general also required initial reforms. At this time, the case for same-sex divorce reform stands, but changes are surely on the horizon.

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If you have questions regarding the laws pertaining to legal separation or divorce, contact the family lawyers at Protokowicz & Rodier, P.A. today.