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How can same-sex couples avoid their unique divorce issues?

On Behalf of | Aug 15, 2022 | Firm News

As a member of a same-sex couple, you know the struggle. But, what you may not know is that even though marriage and divorce equality have been the law for nearly a decade, unless you and your spouse plan now, you both may have to deal with unique divorce issues.

Same-sex versus opposite-sex divorce and marriage

Marriage equality is now the law in all states, and for the most part, the way that you marry your spouse is the same, regardless of sexuality. As such, marriage equality has largely been achieved. However, due to the nature of the law and the recency of divorce equality, getting a divorce is not exactly equal.

Property division

Due to the recency of marriage equality, it is possible that your time together post-marriage is less than the life you built together pre-marriage. This matters because a Michigan divorce judge only splits the marital estate, which can cause issues if your pre-marital assets are larger than your post-marital assets, even though they may have been purchased jointed or intended to be jointly owned.

Child support and custody

Child support and custody law is largely based on traditional notions of mothers, fathers, biology and adoption. Even if states change the law to recognize the new marriage paradigm, these traditional notions are still utilized by many judges. This means that one spouse may receive special or preferential treatment because of some of these antiquated ideas, like a preference for the perceived mother, the spouse who carried the baby, the spouse with the most direct biological connection, etc.

How do we avoid these potential hurdles?

Most marriage and divorce experts agree, if you want to avoid a messy or litigious divorce, make sure you have a pre-nuptial or post-nuptial agreement in place as soon as possible. This should also be updated periodically to ensure that these agreements are all-encompassing and fully account for the life that you both have built together. Otherwise, you may find that divorce equality, in fact, does not yet exist.