Same sex divorce can be equally, if not more, challenging than a situation involving a heterosexual couple. An experienced Arizona family law attorney at Blake & Pulsifer, PLC can represent you in the divorce process and work to protect your legal rights.
Although same-sex couples have the same right to get married and divorced as anyone else, there may be unique issues based on the nature of both same-sex marriage and the nature of the relationship itself. It is crucial that you hire an experienced divorce lawyer to help you navigate these issues. You may need to make legal arguments based on Arizona law and judicial precedent, as well as potentially novel positions on issues where there is limited precedent.
You can learn more about legal options in your situation, and how it may be viewed under Arizona law, by scheduling an initial appointment with a family law attorney at Blake & Pulsifer, PLC by calling us at (480) 838-3000. Being informed about potential matters early in your case can help you both prepare and strategize to obtain the best possible outcome.
Based on the Supreme Court decision of Obergefell v. Hodges, same-sex marriage is the law of the land. While same-sex couples may get married just the same as anyone else, these marriages could also end in divorce. Then, there may be unique legal issues that could come into play. Here are five challenges that you may face when you are going through a same-sex divorce in Arizona.
Determining When Property Was Acquired
Arizona uses the law of community property, which means that property acquired by either of the spouses during the marriage is divided equally between the two. There may be disputes between the two spouses about the actual length of the marriage. Arizona does not recognize common law marriage. However, there may be questions about when a spouse acquired property if they were living together in a partnership before same-sex marriage was recognized by the courts.
Determining the Length of the Marriage
The length of the marriage can also determine whether one spouse must pay spousal maintenance to the other. The couple may have been in a long-term partnership before they were able to get legally married. Here, while the spouses may not have been married for a long duration, they could have been together for a considerable amount of time. A spouse who needs maintenance may be penalized by the shorter duration of the marriage, requiring skilled legal arguments to potentially persuade the court otherwise.
Presumption of Parentage
In the case of Pavan v. Smith, the Supreme Court held that the same marital presumption of parentage that applies to heterosexual couples also applies to same-sex spouses. When a married couple has a child together, both spouses are presumed to be the parents. This was the holding of the Arizona Supreme Court case of McLaughlin v. Jones. The same holds true when one woman in the married couple is the one who actually gave birth to the child. Issues of parentage may impact a divorce when it comes to things like child support.
Parental Rights
There may be times when a spouse served in a parental role for a child that the other had before the marriage. They may not want to break the bond with the child, and they may wish to continue participating in their life. Arizona has an in loco parentis law that may allow a spouse to continue playing a role in the child’s life if they had previously done so, and it is in the child’s best interest, and this applies to same-sex marriage.
The couple may have been married in another state that did not recognize same-sex marriage at the time that a child was adopted or born. If both parents were not listed on the birth certificate, there is a chance that Arizona may still recognize the parental rights of both if there is a marital presumption that applies.
Lack of Legal Precedent
To be clear, there are already Arizona cases decided on point regarding issues like presumption of parentage, in loco parentis and adjudicating divorces of marriages that were entered into in another state. However, same-sex marriage is a relatively new right that has evolved in the past decade. There may be unique issues in your case, or there may be disputes about issues that have not yet been fully adjudicated in Arizona. Therefore, you may face some uncertainty about the actual law when you are going through a same-sex divorce.
Contact an Arizona Family Law Firm
Speak to an Arizona divorce lawyer at Blake & Pulsifer, PLC if you are going through a same-sex divorce. They are knowledgeable about the unique issues that may affect your divorce based on your status as a same-sex couple. You can schedule an appointment by filling out an online contact form or by calling the law firm today at (480) 838-3000.
