Since 2003, LGBTQ+ couples have been entitled to the same rights and protections as heterosexual couples under Massachusetts law. When it comes to divorce, LGBTQ+ couples have all of the same issues to contend with as heterosexual couples such as the division of assets, custody, parenting time, and alimony/spousal support. However, there are special considerations in an LGBTQ divorce that would not necessarily arise in a heterosexual one. If you are in an LGBTQ+ marriage and have questions about the divorce process, it’s wise to contact an experienced family law attorney or mediator.
Dividing Assets from an LGBTQ+ Marriage
When a couple splits up, the court will look to fairly divide their marital property. To do this, it first needs to determine which assets are considered marital property and which are considered separate property. Marital property may be considered all assets that were acquired by the LGBTQ+ couple after their marriage, but may also include assets acquired before the marriage, depending on numerous factors including the length of the marriage, and whether the couple cohabitated and were economically interdependent/cooperative before marriage.
Such a determination may be more complex in an LBGTQ+ divorce because a couple may have been living together as a married couple for many years but only have been legally married for a few years. In these instances, differentiating between what should be considered separate as opposed to marital property can often be unclear.
Determining parental rights in an LGBTQ+ divorce can be complicated by the fact that only one parent may be the biological parent of a child, in the event that the parents have used assistive reproductive technology. If both are not legally recognized as legal parents, only the biological parent will have the right to custody of and parenting time with that child. This would be the case even if both parents are raising the child together. In Massachusetts, these issues typically are addressed if both LGTBQ+ parents appear on a child’s birth certificate as parents.
Second Parent Adoption
Although Massachusetts offers equality to LGTBQ+ parents, numerous other states and countries have hostile laws and/or case law towards LGTBQ+ parents. A recent case in Oklahoma granted custody to the known sperm-donor father over the second-parent mother. Even though the second-parent mother was on the birth certificate and had raised the child for two years, the court ruled that she was not the legal parent because she was not the child’s adoptive parent. For these reasons, it is important that LGBTQ+ parents formally adopt their child, even if both parents are on the birth certificate. Second-parent adoption is crucial to safeguard parental rights if parents move to another jurisdiction, or even just travel out-of-state (for example in case there is a medical emergency or the unavailability of the biological parent). Consult with Nussbaum Family Law LLC regarding your LGBTQ+ second-parent adoption proceeding.
If a parent isn’t on the birth certificate in Massachusetts they still may have options through which to pursue custody and parenting time. The Supreme Judicial Court decided that parenting rights may be given to a child’s non-biological parent in a same-sex marriage as a “de facto” parent if that person has been acting as the child’s parent and if the loss of the relationship would be harmful to the child. In addition, some courts have granted legal custody to a step-parent over the biological parent when it is clear that it is in the child’s best interests because the step-parent is the better caretaker.
The length of an LGBTQ+ couple’s marriage is a factor when determining whether or not alimony (spousal support) will be awarded and in determining its duration if warranted. The wrinkle here, as with dividing marital assets, is that a couple may have been cohabitating for many years, but only have been legally married for fewer years. In these instances, the probate and family court may consider the length of premarital cohabitation in determining the duration of alimony.
Consult with Nussbaum Family Law LLC for questions about LGBTQ+ prenuptial, postnuptial, divorce and custody matters
Family law issues, whether the couple is LGBTQ+ or heterosexual, can be extremely challenging. The good news is that your family law issues or divorce does not have to be resolved in a contentious court case. Prenuptial/Postnuptial agreements, custody issues, or divorce may be resolved through Mediation or collaborative divorce, which are excellent options that are easier, faster, and less expensive than conflict or litigation. Consult with a mediator/family lawyer for more information on the LGBTQ+ family law and divorce process in Massachusetts.