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Complicating matters in a same-sex divorce

On Behalf of | Jan 4, 2022 | Family Law |

Same-sex marriage has been the law of the land since 2015, when the U.S. Supreme Court ruled that same-sex couples have the fundamental right to marry under the 14th Amendment of the U.S. Constitution. Couples had fewer options before this ruling, and even if they married in a state that recognized same-sex unions, could not exercise those rights if they moved to a state that was more restrictive.

Many couples opted for a domestic partnership or civil union before these laws changed, and so when it comes to divorce, state laws surrounding property division and custody for these couples can be quite complex.

What happens in a same-sex divorce in Indiana?

Indiana was one of 13 states that banned same-sex marriage in 2014, but now a divorcing same-sex couple follows the same basic requirements for divorce as any other couple. As long as one partner has resided in the state for at least six months, the divorce can proceed. For residents of Marion County and surrounding areas, it may make sense to find out more about how divorce laws will apply to your situation.

There are no-fault or fault-based grounds for divorce, and when it comes to property division, same-sex couples must inventory their assets as well as debt and accept the court’s decision on the equitable division of marital property. The court will also make child custody and parenting time decisions based on what is in the best interests of the child.

What complications can come up?

Where it gets more complex is for same-sex couples who were together before the marriage was legal. The court will treat assets that either spouse acquired prior to a legal marriage proceeding as separate property, even if they used common funds to purchase it. This also applies to debt that either spouse incurred.

Couples who started a family before the marriage was legal may face complications when it comes to custody and parenting time rights. Because it was almost impossible for one partner to adopt the other’s biological children before their union was legal, many states will not recognize their parental rights.

The courts usually make decisions regarding alimony based on need, but there is no standard procedure for determining the amount of an award, especially for couples who were together many years before they became legally married.