Same Sex Couples Should Make Extra Preparations for Divorce

 Posted on August 25, 2015 in Divorce

Same-sex marriage was recently legalized across the entire United States. While some gay couples have still faced discrimination, for the most part, same-sex couples in every state have been able to celebrate their relationships and officially marry. As joyful as marriage is, legalizing marriage for a large group of people in the United States will eventually, unfortunately, and inevitably lead to divorce for some of them. While one would assume that same-sex divorce cases would be handled the same as any other divorce case, a lack of laws and prior precedent means a same-sex divorce could be messy, and the splitting of a couple’s financial assets could be left up to a judge. Planning ahead can help ease a couple’s stress about the unfortunate possibility of divorce down the road.

Unique Challenges

Same-sex couples have lined up in each and every state for weddings this past summer. With that comes a slew of couples also interested in getting a divorce. Same-sex couples faced numerous hurdles when seeking a divorce, prior to the national legalization of gay marriage. Many couples who lived in states that did not recognize gay marriage were forced to wade through countless court processes in order to divide their assets. Those that chose to get married in a state other than their home state, and then moved back home, were forced to consider relocating to the state in which they were married, as many states have residency laws in place that block speedy divorces. With gay marriage legalized across the country, same sex couples now are afforded the same divorce process as any other couple.

There are new challenges, however, to the divorce process for gay and lesbian married couples. Under Illinois law, courts look at the length of time a couple has been married and how much each partner has financially contributed to their family when deciding how to allocate marital assets. Many gay couples had been in committed relationships, as partners unable to legally marry for many years, but still considered themselves married or on a similar level to marriage. While it is likely that a court would consider that time prior to marriage in the separation of assets process, there is no way to know for sure. Marriage typically indicates that a couple is committing, financially and otherwise, to each other, making it easier for courts to distinguish the start of the time period they should consider in the division of assets. For many long-term gay partners, who have just now been given the opportunity to marry, their financial separation could be left up to the opinion of the court, rather than be based on the real length and seriousness of their relationship. If one partner has a child prior to marriage, the child could also now be considered the right of both partners in a divorce. These are issues that should not be left up to chance.

Possible Options

If the unfortunate situation of a divorce should arise for a same-sex married couple, it is much better to be prepared for the worst and have peace of mind that your lives will be split fairly. Experts suggest that gay couples should explore prenuptial and postnuptial agreements to avoid any “gray” areas in court. The couple can clearly lay out how their assets would be divided in a manner that they both can agree to. These agreements will also help avoid any siblings, children, or other relatives believing that they are entitled to more assets than a partner.

Navigating the divorce process can be challenging, emotionally draining, and painful. Having a qualified Naperville attorney by your side through the process can be extremely beneficial. Please contact the Pesce Law Group today at 630-352-2240 for more information.