Now that same sex couples have the right to marry, they also have the right to divorce. Many people want to know how same sex divorces are different that opposite sex divorces. In most ways, the answer is “they aren’t”. All divorcing couples must deal with 4 key issues in order to get a divorce.
1.) Will there be a divorce?
The answer to this question is almost always “yes”. There are two types of divorces: irreconcilable differences and fault based. There are 13 bases for fault under Tennessee law. Divorces typically start as a fault based divorce but end as an agreed irreconcilable differences divorce.
2.) What will happen to the assets and debts?
Again, just like in an opposite sex marriage this question is simple. With some exceptions (like inheritances or things brought into the marriage) all assets acquired during the marriage are totaled, all debts acquired during the marriage are totaled, the debts are subtracted from the assets, and the resulting number is divided in half. That number is the net value of assets and debts each party should get. This is exactly like an opposite sex divorce.
3.) What will happen to the kids?
Custody is the area where things can differ between same and opposite sex divorces. If the non-biological parent has adopted the child, custody is exactly like that in an opposite sex case. If not, there are options for “step parent vitiation” which allow third parties visitation. The results of each approach will vary but the goal is to create a co-parenting schedule which is in the best interests of the children. That (usually) means maximizing the amount of time they spend with each parent.
4.) What sort of ongoing support will there be?
If there are children, there will be child support. Child support is based on: the number of days each parent spends with the children, each party’s income, insurance costs, and daycare costs. This is exactly like an opposite sex divorce. Spousal support (alimony) may also be appropriate as it would in an opposite sex case. There are 9 factors the courts consider in evaluating claims for alimony. There are 4 different kinds of alimony. Alimony is extremely fact specific and should be discussed with an experienced divorce lawyer.
In the end, if you are in a same sex marriage and are looking for a divorce, don’t be fooled by attorneys who say you need a specialist. What you need is an experienced divorce attorney. Same sex marriages are no different than opposite sex marriages; the divorce process shouldn’t be either.
