Same-sex divorce still relatively new in legal terms

Even though Massachusetts was one of the first states to legalize same-sex marriage, there still remains a dearth of legal precedent and guidance on a very important related issue: same-sex divorce. Logically, there shouldn’t be that much of a difference, right? You’d think that property division, custody, child support, spousal support and other key family law topics would be decided in a similar manner regardless of the gender of the parties involved. Realistically, though, that isn’t the case.

Some of the inequality and complexity often associated with same-sex divorce comes from archaic laws that, instead of using terms like “spouse” or “partner,” instead use terms like “husband” and “wife.” This may seem like a small difference, but it actually can be quite confounding. There are also historical precedents to consider, like the fact that, traditionally, the mother has been granted custody of the children, while the father gets parenting time and has, in the past, usually paid child support. Such distinctions cannot be easily applied when a same-sex couple is splitting, particularly if there are children and adoption proceedings haven’t been finalized giving the non-biological parent legal rights to the children.

As our own gender identities evolve, so must the laws we are bound by. For example, if the law specifically states that distinctions will be made between a husband and a wife, how will those laws be applied if there are two males or two females in the marriage? Who will be the “husband” or “wife” in those situations? Family court judges are tasked with applying the law, not interpreting it or construing it in new ways, so they may simply refuse to hear same-sex divorce cases (something that has come up in the news recently) if they aren’t sure how to do that in a consistent manner.

Even if the judge agrees to take a same-sex divorce case, there is a real risk of disparate treatment from jurisdiction to jurisdiction, and even by different judges in the same area as existing laws are applied to new sets of facts that hadn’t necessarily been considered when the underlying statutes were drafted. With same-sex marriage being a relatively new legal concept, only time will tell how the laws and regulations of Massachusetts and other states will grow and evolve to address these issues and others that will surely arise.