What can make same-sex divorce a distinct process?

For roughly a decade now, federal policy has required that all states recognize same-sex marriage. Prior to a critical Supreme Court ruling in 2015, same-sex marriage rights existed on a state-by-state basis. Oklahoma was not one of the states that recognized same-sex marriage before this and a prior federal court ruling. Neither state lawmakers nor voters had adopted measures to acknowledge same-sex relationships. In fact, there was a law prohibiting same-sex marriage on the books.

With a federal court ruling in 2014 that struck down Oklahoma’s ban, same-sex marriage became legal. The Supreme Court ruling the following year made it legal in all 50 states. Many long-term couples previously denied the right to marriage finally received state acknowledgment of their family status. Others who may never have thought about marrying previously could now dream of starting their own families.

As is true for any couple that marries, same-sex couples sometimes choose to divorce. Spouses in same-sex marriages preparing for divorce may have questions about the process ahead and may worry that the courts may not be prepared for a case such as theirs.

What sorts of complications sometimes arise when same-sex couples choose to divorce?

Questions about the marital estate

As previously mentioned, there were many couples in long-term, committed relationships who simply could not marry under existing statutes prior to 2014 and then the 2015 Supreme Court ruling. They may have shared their homes and their finances for years without the state acknowledging the legitimacy of their relationship.

Couples who had committed before the legalization of same-sex marriage may face an unusually complex property division process. Typically, couples have to fairly divide the assets acquired during the marriage and any marital income as well.

The pool of marital property can be much more difficult to identify when spouses shared their homes and resources with one another before the state recognized their relationship as a marital one. Same-sex couples preparing for divorce may need help evaluating their assets and debts carefully to make a reasonable determination about what is subject to division and what they can retain as separate property.

Challenges related to child custody

Many same-sex couples have children in their homes. In some cases, one spouse may have a child from a prior relationship. Other times, one spouse might carry a child or donate genetic materials for the purposes of procreation. People may also adopt.

Particularly in scenarios where one spouse adopted prior to the marriage or only one spouse has a biological connection to the children in the family, custody matters can quickly become quite complicated. Spouses may need help understanding how the courts have handled similar cases and establishing goals that are truly in the best interests of the children in the family.

Technically, same-sex divorces are subject to the same legal standards as heterosexual divorces involving opposite-sex couples. Yet, securing the right support can make it easier for people to identify unique factors that may require more consideration in an upcoming same-sex divorce.