The Emerging Legal Issues Surrounding Same-Sex Marriage And Divorce

The Emerging Legal Issues Surrounding Same-Sex Marriage And Divorce

Because cases of same-sex divorce are so few, corresponding case law is very hard to come by. This means judicial guidelines are harder to set and gay and lesbian couples may have a harder time divorcing.

While it is true that same-sex marriage was briefly legal here in California several years ago-and is now legal again thanks to a landmark ruling by the United States Supreme Court back in June 2013-it is still "young" in judicial terms.

Although legally married gay and lesbian are now afforded new rights under federal law, if they wish to divorce, it's likely they will face frustration and uncertainty nearly every step of the way. This is because there is just not enough case law and statutes that specifically address their unique issues. Further, as a result of this lack of judicial guidance for same-same couples, their divorces will take, on average, twice as long to finalize and cost at least twice as much. Costs and delays are even bigger if children are involved.

Effects Of The U.S. Supreme Court Decision

A huge reason involves the U.S. Supreme Court's recent ruling on the Defense of Marriage Act, commonly referred to as DOMA.

Same-sex couples of high net-worth-regardless of whether they wed in California or in one of the other 12 areas around the country where gay and lesbian marriage is legal-will likely see complications in their divorce proceedings because of the decision.

The Court struck down several important provisions of the federal Defense of Marriage Act (DOMA) and ruled that the protections and benefits offered to heterosexual couples by DOMA-including tax benefits, retirement benefits and more-will be extended to same-sex couples who live in a state where their marriage is recognized, regardless of where the couple wed.

For high-income individuals in California, the tax benefits alone can save them thousands of dollars in a divorce, however, the dissolution will likely take longer and cost more.

Court Hesitation

Another big reason for delays in same-sex divorces is due to the near absence of legal guidance at the local court level.

Most court filings about divorce are gender-specific, referring to a "husband" of the marriage and a "wife" of the marriage. However, those designations are useless in a same-sex marriage and the ambiguity can be frustrating for judges.

As a result, inconsistent judicial application of otherwise applicable laws (even between judges in the same county) may occur. It may also leave some judges unwilling to handle same-sex divorce cases, claiming that they don't have proper jurisdiction.

Increase In Same-Sex Divorce, Family Matters

A growing acceptance of same-sex marriage around the nation also comes a greater need for legal services like divorces, prenuptial agreements, adoptions and estate planning specifically geared to address the unique needs of gay and lesbian couples.

If you have questions about California same-sex marriage, same-sex divorce or related topics, consulting with an experienced family law attorney in your area is advised.

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