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Is the divorce process different for same-sex couples?

On Behalf of | Aug 11, 2022 | Divorce |

After the U.S. Supreme Court mandated that states allow same-sex marriage, the natural extension was that this mandate also applied to same-sex divorce. Of course, in practice, just because the Supreme Court states something is so does not mean that states immediately follow those orders.

However, by 2015, all states had marriage equality, but some states are still having issues with divorce equality. On the other hand, even those states that purport to have marriage and divorce equality, in practice, divorcees may have vastly different experiences.

Are the laws different?

No. Thankfully, for same-sex couples, Michigan law recognizes marriage and divorce equality. This assumes that you meet the jurisdictional requirements. Essentially, wherever you want to file for divorce in Bloomfield Hills, you must have lived there for at least 10 days and at least 6 months in the state. As long as the couple meets these two requirements, they can divorce.

Child custody preference for biology

Unfortunately, since same-sex marriage and divorce equality is less than a decade old, child custody law is still largely based on traditional legal notions of biology. This means that if there is a biological connection between the child and one spouse, that spouse may receive preferential treatment from the family law judge. This means that this parent could receive primary custody when shared custody would actually be in the best interest of the child.

Differences in property division

Similarly, same-sex divorcees may have issues in the property-division process as well. This also relates to the recency of marriage and divorce equality. Specifically, except for those same-sex relationships that started after equality, those who were together before may have decades of building a life prior to the establishment of their legal marital estate.

Unfortunately, it is this marital estate that is divided in the divorce property division process, and the court gives back all the property each spouse entered the marriage with. Of course, this can become complicated if the couple was together for years or decades prior to that marriage, which is often the case for same-sex couples.

Paper solutions

As with most legal issues, these family law issues have paper solutions: Bloomfield Hills, Michigan, co-habitation agreements, prenuptial and postnuptial agreements, etc. Putting both spouses’ understandings in writing and agreeing on child custody, support and property division now is preferable to waiting until a divorce occurs. After all, it makes sure that the couple makes their own decisions, not a random person with nothing invested in the relationship, like a family court judge.