Barbara J. Katzenberg, Attorney at Law
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Nontraditional family breakups can be difficult to navigate

Years ago, many same-sex couples got married in Massachusetts because it was not yet legal in their own states of residence. This caused legal problems for those whose marriages broke up later. A current child custody fight involves a mother whose partner adopted a 6-year-old child in 2007 after they had been together since 1999. Because marriages and child adoption were still taboo for a nontraditional family in their state, the partner was documented as the only parent of the child.

When they decided to get married in 2009, same-sex marriages were still illegal in their home state. They traveled 1,400 miles to tie the knot in Massachusetts. They returned home afterward, and through in vitro fertilization, the other spouse became pregnant in 2011. A little boy was born later that year. Once again, as per the state laws at the time, only the biological mother was recorded as a parent on the child's birth certificate.

The two women grew apart over time and by 2013 they were living apart. Filing for divorce in their home state of Mississippi was out of the question because their marriage was never recognized there. When they inquired about filing for divorce in Massachusetts where they were married, officials informed them that one of the spouses would have to be a resident of that state for at least one year before they can file for divorce.

In the meantime the legal mother of the children got married to a man, arguing that her same-sex marriage never existed in Mississippi. She refused her former partner any visitation rights to the children. However, after same-sex marriages were legalized by the U.S. Supreme Court in 2015, a court in Mississippi ruled that the same-sex marriage in Massachusetts was still valid. Her marriage to the man was then annulled. 

The same-sex couple filed for divorce in 2015, and their court appearance is imminent. The shunned mother who was in the relationship and cared for the children for 15 years will battle to obtain joint custody of the two boys. While the laws related to nontraditional family law are evolving, same-sex spouses may have to confront many legal obstacles. It may be beneficial to consult with an experienced divorce attorney who is up to date with the latest modifications to family laws in Massachusetts and elsewhere.

Source: NBC News, "For Some Same-Sex Couples, Divorce Is a Legal Nightmare", Julie Compton, Sept. 7, 2016

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