Barbara J. Katzenberg, Attorney at Law
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Same-sex marriage complicates same-sex divorce

Even though modern American society is becoming more comfortable with same-sex couples, gay marriages do not yet have legal recognition in most of the country. Thirteen states, including Maryland, have legalized gay marriage, and more will probably follow in the coming years, but problems with the dissolution of same-sex marriages are becoming more common and have yet to be addressed completely in most states. Although gay couples are less likely to divorce than straight couples, they face substantial financial and legal complications when they try to do so.

In those states that allow same-sex marriage, divorce is possible, but often have strict requirements, such as residency, that are hard to meet, especially if a couple is employed in or runs a business in another state. For this reason alone, a same-sex couple should establish prenuptial and postnuptial agreements to protect their interests in case the marriage ends in divorce, no matter in what state it might occur.

Many unmarried same-sex couples commingle their properties, but those properties are not considered joint in any state -- and for married same-sex couples, only considered joint property in states that recognize same-sex marriage. Because gay couples could not legally marry until very recently, property division can be complicated.

Child custody can also become a problem for couples when one partner is the biological parent of a child and the other is not. Because biological ties do not exist between the child and the other partner, the nonbiological partner may have trouble establishing a claim of parental rights. One way to avoid this is for the non-biological partner to adopt the child when he or she is born.

Finally, settling same-sex divorce issues is difficult, especially if spouses attempt to handle matters on their own. It is important and highly advisable to make sure that divorce and other matters for nontraditional families are handled by knowledgeable people to prevent or avoid prolonging legal trouble.

Source: CNBC, "Gay couples find divorcing has traps," Judith Messina, Oct. 16, 2013

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