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Issues that could arise when same-sex couples seek to divorce

Same-sex couples who marry often encounter the same trials as opposite sex couples. This means that as is the case when a man and woman marry, there are times when the marriage between a same-sex couple will end. When this happens they will have to address the same issues as opposite sex divorcing couples do, including asset division and sometimes child custody and support matters.

While the divorce process for couples comprised of a man and woman is well established throughout the nation, the same can’t be said for same-sex divorces.

In fact, depending on the state in which the couple resides, divorce may not even be possible. This is because while Massachusetts is one of the 19 states that recognize same-sex marriage, some other states do not. If they don’t recognize the marriage, then divorcing is impossible. This issue could arise if a couple marries in a state that recognizes the union and later moves to a state that does not.

In particular, same-sex couples could encounter issues with establishing child custody. Such an issue might arise where one of the parents is the biological parent and the other fails to adopt the child. While this may seem like a common sense approach to establishing parentage, the process can be expensive and may be deemed unnecessary by a couple that at the time is happy and can’t imagine divorcing. The reality however is that adoption is beneficial to same-sex parents when they break up, even if they are living in a state where their marriage is not recognized.

This is of course only one scenario in which same-sex couples who married in Massachusetts but now live in another state and are seeking to divorce, could run into. Just as the assistance of a lawyer is often beneficial in a divorce involving a man and a woman, so too can an attorney help same-sex couples.

Source: ABC News, “Divorce Law out of Sync With Same-Sex Marriage,” Leanne Italie, Sept. 30, 2014

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