LGBTQ+ Family Law: Unique Issues Faced During Divorce

Ending a marriage is never an easy process — and there can be even more legal challenges in an LGBTQ+ divorce. If you are in a same-sex marriage, you might face distinct issues related to custody rights, child support, alimony, and property division. Although the divorce process is the same for everyone, there are some crucial considerations that LGBTQ+ couples should keep in mind. Importantly, same-sex couples might consider using mediation or another form of alternative dispute resolution to ensure their unique issues are adequately addressed in divorce.

Child Custody and Support Issues in LGBTQ+ Divorce

It's critical to consider the best interests of your child first and foremost in divorce. A custody arrangement should be specifically tailored to ensure the needs of your child are met and they are able to foster a positive relationship with both their parents. However, child custody matters can be complicated in an LGBTQ+ divorce.

While custody rights apply just as they would in a heterosexual divorce, parentage is not always straightforward when it comes to LGBTQ+ families. Significantly, marriage doesn’t always give a non-biological parent full parental rights — and the legal presumptions can be more complex if your child was conceived through assisted reproductive technology. Without a legal finding of parentage, the non-biological parent would not have any parental rights and they would not be obligated to pay child support.

In cases where a child is conceived through assisted reproductive technology, the biological parent might be considered the only legal parent. In order to avoid any issues that could arise in connection with asserting parental rights either during the marriage or the divorce process, parents might consider co-parent adoption. This is effectively the same process as stepparent adoption for heterosexual married couples and gives both parents the same rights, obligations, and responsibilities under the law.

Property Division for Same Sex Couples

Property division is the same for both LGBTQ+ and heterosexual divorces. Missouri follows the doctrine of equitable distribution, which means that marital property, assets, and debts are divided in a manner that is deemed fair to both parties — it does not necessarily mean equal. Property owned by either spouse before the marriage would be considered separate property and not subject to division in divorce, regardless of whether spouses cohabitated before the date of the marriage.

Missouri courts apply a number of statutory factors to determine how property should be divided between spouses, including the following:

• Each spouse’s economic circumstances at the time the property division is to become effective
• Each spouse’s contribution to the acquisition of the marital property
• Either spouse’s contribution as a homemaker or stay-at-home parent
• The value of any non-marital property set aside to each spouse
• Each spouse’s conduct or misconduct during the marriage
• Child custody arrangements
• Tax implications for either spouse

In the event a couple executed a prenuptial agreement prior to marriage or a postnuptial agreement during the marriage, the terms of the document would control how property is distributed in divorce.

Alimony in a Same-Sex Divorce

In cases where one spouse financially supported the other during the marriage, the lower-earning spouse may be entitled to spousal support — commonly referred to as alimony. Spousal support is gender neutral and can be awarded to either spouse in a same-sex divorce, based on need. If spouses cannot decide alimony issues on their own, a court will determine the issue by evaluating several factors. These include how long the spouses were living together, the financial capacity of each spouse, the age and health conditions of the spouses, and any misconduct by either spouse.

How Mediation Can Help Resolve LGBTQ+ Family Law Issues

Not every divorce needs to be resolved in the courtroom. Mediation is a form of alternative dispute resolution that can benefit same-sex couples in many ways. Not only can it help you resolve the issues that must be determined in divorce amicably and efficiently, but it can help you find creative solutions that might not otherwise be reached in litigation.

During the mediation process, a trained neutral party called a mediator can help ensure spouses engage in healthy communication. Mediation can be particularly advantageous in situations where the couple shares children. The mediator can help guide parents to reach a child custody arrangement that works for everyone in the family, while preserving the co-parent relationship.

Contact an Experienced Missouri LGBTQ+ Family Law Attorney

It’s essential to have an LGBTQ+ family law attorney who understands the complexities that can arise in these cases and can guide you through the divorce process. Divorce and family law attorney Mark A. Wortman provides skillful counsel to clients in the greater Kansas City, Missouri area for LGBTQ+ family law issues and divorce matters. To schedule a confidential consultation to learn how he can assist you, please contact him today online or by calling (816) 523-6100.