With the June 2015 Supreme Court ruling enabling same-sex couples to marry across the country, same-sex divorce is inevitable. In the majority of these situations, the divorce process will proceed in the same way as any other divorce cases, especially if the couple has signed a pre- or post-nuptial agreement. Many experts advise these for any couple to prevent any type of confusion during the divorce process, despite the fact that most couples believe that they will never split up.
One challenge that courts may face when presiding over a same-sex divorce is the couple's difference of opinion about the relationship. One party may state that they lived as a married couple for many years before the court ruled that they could marry while the other party claims that they did not do so until their wedding date. This can make alimony and property division decisions very difficult.
In cases where a same-sex couple prepared estate planning or financial documents prior to marriage legalization, some courts may interpret these documents as the couple's intent to marry. This could mean that assets that the couple obtained from that point forward became marital property while assets that either party owned before that time were separate. This difference can make a very large difference in the property division if one party's name is on all of the couple's assets.
When considering all of the factors related to same-sex couples and divorce, an attorney's advice can be very helpful to a divorcing spouse. A family law attorney could explain what the court may consider and the likely outcome of any court proceedings. Legal counsel could also assist in attempting to negotiate a comprehensive settlement agreement with the other party.