Massachusetts has always been a leader on same-sex marriage: Our state supreme court, in Goodridge v. Department of Public Health, decided that prohibiting gay marriage was unconstitutional back in 2004, a full decade before same-sex marriage was legalized nationwide. The Goodridge decision made Massachusetts one of only six locations worldwide to allow same-sex couples to marry, marking a huge victory for the strong LGBTQIA+ communities in Boston, Provincetown, and the rest of Massachusetts.
Of course, with the opportunity to marry has come the burden of divorce. Same-sex and LGBTQIA+ couples have not been immune to the possibility of their marriage ending in divorce. What has become clear over the last decade, however, is that LGBTQIA+ and same-sex couples sometimes face special challenges in divorce and child custody cases that are not present in “traditional” divorce cases. As we explain, below, LGBTQIA+ family law cases involve several unique nuances that must be considered by LGBT clients and their attorneys.
We are an LGBTQIA+ friendly and gay-friendly law firm. If you and your spouse are considering a divorce, reach out to our same-sex divorce attorneys at The Law Office of Polly Tatum at (774) 366-3688.
What Happens In Child Custody Cases Involving LGBTQIA+ & Same-Sex Parents?
The law is notorious for running several years behind societal developments. Same-sex marriage is no exception. One area where the legal field has struggled to keep up involves child custody cases for LGBTQIA+ parents that rely on assisted reproductive technology (ART), such as artificial insemination, surrogacy, and egg and sperm donorship.
Under Massachusetts and U.S. law, a biological parent of a child has a significant advantage in a child custody dispute. State law applies these same advantages to the parents’ adopted children, but courts have struggled to address parenting arrangements in which a child is a biological offspring and the remaining parent did not complete the formal adoption process prior to the divorce. (The law similarly struggles with defining “biological children” when an LGBTQIA+ donates sperm or an egg to a surrogate or if the parent gives birth to a child that he or she is not genetically related to via a sperm or egg donor.)
To be clear, if both LGBTQIA+ parents take all of the necessary steps to each appear on a child’s birth certificate as a biological or adoptive parent, each parent is likely to receive equal treatment under the law. In cases involving less perfect scenarios, however, the spouse with the superior parental status may have the upper hand in keeping custody of a child born during the marriage. Despite caring for the child since birth, the non-biological/adoptive parent may be treated like a stepparent, with few if any legal rights.
Thankfully, Massachusetts provides some remedies for LGBTQIA+ individuals who are parents in every sense other than legal status. For example, the law increasingly recognizes the importance of de facto parents in a child’s life. In the case of Guardianship of K.N., the Supreme Judicial Court of Massachusetts decided that non-biological parents—like a stepparent, grandparent, or the non-biological parent in a same-sex marriage—could be granted visitation rights over the objection of the child’s biological or legal parents, if the relationship they have with the child is close enough that its loss would harm the child.
Under the Massachusetts guardianship statute, courts have also found granted legal custodial status to step-parents over biological parents when the step-parent is the superior caretaker. While these developments under the law do not put non-biological/adoptive parents on even ground in a child custody dispute, attorneys are increasingly able to carve out parental rights for same-sex and LBGT parents who would have once been powerless to preserve a meaningful parent-child relationship.
How Are Marital Assets Divided In A Same-Sex Divorce?
One important difference between same-sex and “traditional” divorce is how courts may view which assets are “marital” and which are not.
Under Massachusetts law, all assets owned by both parties are considered “marital”, regardless of when the assets were acquired, and are therefore subject to marital division. As a practical matter, however, Massachusetts courts had long focused on when assets were acquired when determining how assets will be divided in a divorce. They might include positive assets—like a house, car, or retirement account—or negative assets like student loan debt. Courts are less likely to view assets acquired before the marriage as subject to division.
Fourteen years have passed since gay marriage was legalized in Massachusetts. With each passing year, fewer and fewer same-sex divorce cases in Massachusetts involve scenarios in which a court must determine how to divide premarital property that was acquired before same-sex marriage was legalized in Massachusetts. Of course, many same-sex couples who are seeking a divorce today were together before 2004, at a time when the law prohibited the spouses from getting married.
The problem is more acute for same-sex and LGBTQIA+ couples who lived outside of Massachusetts–in states where gay marriage was illegal–prior to moving to the Commonwealth. For these couples, courts must determine how to treat premarital assets that were acquired by the parties while they cohabitated before moving to Massachusetts. This often requires a fact-specific analysis that centers on whether the parties would have gotten married in their former state had the option existed.
Before 2014, many same-sex couples across the United States were living together and acting as unofficial spouses long before they had the right to tie the knot and make their relationship official. If their prior state featured a civil union or a domestic partnership law, the asset division can become even murkier.
Many same-sex spouses have multiple starting points for their marriage. The date of the legal marriage is generally easy to determine, but the official marriage date can be tricky to pin down. If substantial assets were acquired by the parties before they were legally married, this can become a significant complexity in a divorce proceeding.
Alimony For Same-Sex Couples
The issues surrounding asset division for same-sex couples are even more pronounced in alimony cases, where the duration of alimony payments is measured based on the length of the parties’ legal marriage. For same-sex and LGBTQIA+ spouses who were prevented from marrying under the law, the durational limits for alimony based on the length of the legal marriage can seem deeply unfair.
The Massachusetts alimony statute includes an exception to the ordinary rule that limits alimony based on the length of the marriage. The statute, M.G.L.c. 208 s. 48 instructs courts to count the “…months from the date of legal marriage to the date of service of a complaint or petition for divorce” when calculating the duration of alimony.
However, the statute also says that a court “the court may increase the length of the marriage if there is evidence that the parties’ economic marital partnership began during their cohabitation period prior to the marriage.”
In short, the duration of alimony may be extended for spouses who cohabitated before being married. Same-sex and LBGT couples who cohabitated together prior to the legalization of same-sex marriage often have a particularly strong claim to extended alimony, but the argument is far from automatic. After all, many couples cohabitate before getting married, and the mere fact that spouses lived together before tying the knot does not automatically extend the alimony duration period.
Attorneys representing same-sex and LGBTQIA+ parties–including the party being asked to pay alimony–must understand the unique dynamics surrounding alimony and same-sex marriages and craft arguments that effectively advocate the client’s unique needs. A “one size fits all” approach rarely works in such cases.
How Can Same-Sex Divorces Become Complex?
While same-sex divorces pose unique alimony concerns, asset division challenges, child custody challenges, and the added complexity of high net worth clients, even the most seemingly straightforward divorce can feature unforeseen complexity.
Just like in divorces involving heterosexual couples, LGBTQIA+ and same-sex divorces can include the following areas of law:
- Prenuptial agreements
- Asset valuation
- Parenting plans
- Child support
- Parental fitness
- Drafting the separation agreement
- Restraining orders
- Abuse and potentially criminal actions
Same-Sex Divorces Are Often High Net Worth Divorces
Compounding the complexity surrounding child custody, asset division, and alimony is the fact that many same-sex LGBTQIA+ couples feature two high-income individuals.
High net worth divorces are far from unique: They occur when both heterosexual marriages and LGBTQIA+ marriages break down, and the spouses have substantial income and assets between them. However, the unique complexities surrounding same-sex divorce are often amplified in high net worth cases, where the additional wealth requires additional skillsets from the attorneys involved.
The truth is that both same-sex divorce cases and high-net-worth divorce cases require attorneys to possess unique skills, experience, and resources. An attorney representing an LGBTQIA+ client in a high net worth divorce must possess the skills required for all of the challenges arising from both classes of cases.
How Can Family Law Attorneys Help Me?
Our family law and divorce attorneys at the Law Office of Polly Tatum provide exceptional legal services to anyone who is considering a divorce, including LGBTQIA+ and same-sex clients. They appreciate the attorney-client relationship and will provide exceptional legal services to LGBTQIA+ and same-sex clients who are considering a divorce, family law representation, LGBTQIA+ visitation, and more. Our attorneys have experience representing spouses in the same-sex divorce process, protecting their rights and interests, and ensuring they reach the resolution they need to live their best life in the future.
Call our law office at (774) 366-3688 for a consultation or contact us online. Our Massachusetts divorce attorney in Worcester can give you the help you need to make it through this challenging time.