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Going through a divorce is never easy, and the legal process can be even more challenging for LGBTQ+ couples. If you are in a same-sex marriage, divorce laws are the same in Missouri as for heterosexual couples. However, there are some crucial considerations that LGBTQ+ couples should be aware of. You might face unique issues related to child custody, child support, alimony, and property division. Importantly, same-sex couples might consider using mediation, the collaborative process, or another form of alternative dispute resolution to ensure the issues that must be resolved in divorce are adequately addressed.
The best interests of your child should always come first and foremost in divorce. This means that a custody arrangement should be specifically tailored to ensure the needs of your child are met and they are able to build a positive relationship with both parents. However, child custody matters can sometimes be complicated in an LGBTQ+ divorce.
Although custody rights apply just as they would in a heterosexual divorce, parentage is not always straightforward when it comes to LGBTQ+ families. Marriage doesn’t always give a non-biological parent full parental rights in cases where a 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 or seek custody.
If a child is conceived through assisted reproductive technology, the biological parent might be considered the only legal parent. In order to avoid any legal issues that could arise in connection with asserting parental rights either during the marriage or the divorce process, same-sex parents might consider co-parent adoption. This is effectively the same process as stepparent adoption for heterosexual married couples. It gives both of the child’s parents the same rights, obligations, and responsibilities under the law.
Property division is the same for both LGBTQ+ and heterosexual divorces. When it comes to same-sex marriage divorce laws, courts follow the doctrine of equitable distribution, just as they would for opposite-sex couples. This means that marital property, assets, and debts are divided in a manner that is deemed fair to both parties, not necessarily equal. Property that was owned by either spouse before the marriage would be considered separate property and not subject to division in divorce, regardless of cohabitation prior to the marriage.
Missouri courts apply a number of statutory factors to determine how property should be divided between spouses in both heterosexual and same-sex divorces, including the following:
In the event a couple executed a prenuptial agreement prior to getting married, or a postnuptial agreement during the marriage, the terms of the document would control how property is distributed in divorce. While every couple’s financial situation is different, an LGBTQ+ divorce lawyer can help determine what is a marital asset versus separate property in your case, and work to ensure a fair property division outcome is achieved.
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 accordance with the same-sex marriage divorce laws, based on need. If spouses cannot resolve the issue of spousal support between themselves, a court will determine the outcome by evaluating several factors. A judge would consider how long the spouses were living together, the financial capacity of each spouse, the age and health conditions of the spouses, and any marital misconduct.
Not every divorce case 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 resolve the issues that must be determined in divorce amicably, efficiently, and cost-effectively, but it can also help spouses find creative solutions that might not otherwise be reached in litigation.
During the mediation process, a trained neutral party called a mediator helps ensure spouses engage in healthy and productive communication. Mediation can be particularly advantageous in situations where a couple shares children. The mediator can guide parents to reach a child custody arrangement that works for everyone in the family, while preserving the co-parent relationship.
Similarly, the collaborative process allows same-sex couples to part ways privately and with less conflict than they might experience going through the litigation process. Collaborative divorce uses a team of professionals who are assembled based on the specific issues in the case. A collaborative team may include financial neutrals, accountants, appraisers, child custody experts, mental health professionals, and divorce coaches, along with each spouse’s attorney. These professionals bring diverse perspectives and can help spouses make informed decisions as they work to reach a tailored settlement that meets their needs.
If you have questions about same-sex marriage divorce laws, it’s essential to have an LGBTQ+ divorce lawyer who can guide you through the legal process of parting ways with your spouse. Divorce and family law attorney Mark A. Wortman provides knowledgeable counsel to clients in the greater Kansas City, Missouri area for LGBTQ+ divorce and family law issues. To schedule a confidential consultation to learn how he can assist you, please contact him today online or by calling (816) 523-6100.
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