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What challenges do same-sex divorcees face?

On Behalf of | Aug 4, 2022 | Child Custody, Divorce, Family Law |

Same-sex marriage equality and the accompanying divorce equality was a win nearly universally celebrated throughout the United States. However, there are some challenges that still linger for League City, Texas, same-sex divorces.

Property division

Property division is the part of the divorce process where the couple’s joint assets are separated. All assets are split into two categories: marital property and nonmarital property. Marital property is split between the spouses, but the nonmarital property remains the property of the spouse who owns it on record. Usually, the nonmarital property is all the property that each spouse entered the marriage with, like cars, homes, jewelry, etc., which were purchased prior to the marriage.

The problem with Brazoria County same-sex marriages vs. opposite-sex marriages, though, is that the “courtship” phase could have lasted much longer as a requirement of law. This is because marriage equality just recently occurred, which means that same-sex married couples could have been together for decades prior to their “legal” marriage. This can cause chaos in the property division process as all of that property that was acquired prior to the marriage, regardless of whether it was jointly purchased, could go to the spouse owner of record. For example, a home purchased together, but placed in the name of only one spouse could receive that entire property as nonmarital property.

Child custody

Another issue where Harris County same-sex couples may face challenges that their opposite-sex counterparts may not face is child custody. The nature of parentage and adoption laws were promulgated on the basis of a mother and father, with preference and default custody given to the biological mother and father.

As such, it is no wonder that same-sex couples have child custody issues because the law only recently even recognized their parentage. Indeed, in some states, adoption agencies can still reject parents based on their same-sex status as well.

One common issue occurs when one parent is the biological parent. In these cases, it is imperative that the nonbiological parent adopt that child and does not rely on any surrogacy agreement. Otherwise, in a divorce proceeding, the nonbiological parent could find that their parental rights are severely abridged or eliminated entirely. Nonetheless, even today, some judges give preferential treatment to the biological mother, even though that bias has supposedly been eliminated.

Negative internalizations and fears of stigmatization

Finally, for Galveston County same-sex couples, there are negative internalizations of divorce and fear of stigmatization. Some feel that a divorce lets down the movement and that there will be some stigma associated with their divorce. However, both are simply not true. The fight for marriage equality includes divorce equality, and no Texan should ever feel shame for finding their best life.