It’s an established right across the United States that same-sex couples can marry and with that right comes the potential for divorce. Alabama, like all other states, recognizes the right of LGBTQ+ couples to both marry and divorce. In this regard, there are many parallels between same-sex divorce and heterosexual divorce. However, there are also unique challenges faced by the LGBTQ+ community.
Equality in Marriage and Divorce
In Alabama, once a same-sex couple is legally married, they are treated the same as any other married couple under the law. This means that, in the event of a contested divorce, the proceedings, rights, and responsibilities are generally consistent with those of heterosexual couples. This includes property division, alimony considerations, and child custody disputes.
Children and Custody
One significant misconception is that in a same-sex divorce, issues around children — particularly in cases of adoption — might be treated differently than in heterosexual divorces. In truth, the state of Alabama does not distinguish between adopted and biological children in divorce proceedings. The best interests of the child remain the paramount concern, regardless of the parents’ sexual orientation or the child’s origin.
In instances where a same-sex couple has adopted a child both parents, if they are both legal guardians, have equal rights to custody, visitation, and decision-making. They also bear the same responsibilities, such as child support. It is essential to understand that the state views parents through the lens of their legal rights and responsibilities, not their biological connection to a child.
Property Division and Alimony
When it comes to dividing assets in a divorce, Alabama follows an equitable distribution model. This means that marital assets are divided based on what is deemed “fair,” which doesn’t necessarily translate to a 50/50 split. Factors like each spouse’s earning potential, contribution to the marriage (financially or otherwise), and the length of the marriage can all influence how assets are divided.
For same-sex couples, if a house or other major asset is in both of their names, it would be treated like any other marital property. The court will evaluate the equity in the house, its value, and other relevant details. If one partner wants to keep the house, they might need to buy out the other partner’s equity or negotiate other assets in exchange.
Alimony or spousal support considerations also align with those of heterosexual divorces. Courts will assess the financial standing of each partner, their contribution to the marriage, their needs post-divorce, and other pertinent factors before making a decision. Of course, in an uncontested divorce there is essentially no difference in the process as long as both parties are in agreement and sign the paperwork properly. It is usually just when there are issues to be decided that unique challenges for the LGBTQ+ community can arise.
Unique Challenges for the LGBTQ+ Community
While the legal processes are largely consistent, the LGBTQ+ community does face some unique challenges in divorce. The societal stigma and pressures, the complexities of coming out later in life, and the emotional challenges tied to gender transitions can all interplay in divorce proceedings. These factors might influence decisions about custody, property division, and even the decision to divorce itself.
Moreover, because the legal recognition of same-sex marriages is relatively new, some couples might have been together for decades before getting legally married. This can create complexities in determining the length of the marital relationship and the assets accumulated during their pre-legal marriage period.
The right to marry inherently brings with it the possibility of divorce. For the LGBTQ+ community in Alabama, while the legal processes align with those of heterosexual divorces, unique social and personal challenges need recognition and understanding. As society changes, so too will the nuances of divorce within this community, underscoring the importance of legal guidance that is both knowledgeable and empathetic.
Attorney Steven A. Harris regularly blogs in the areas of family law, bankruptcy, probate, and real estate closings on this website. Mr. Harris tries to provide informative information to the public in easily digestible formats. Hopefully you enjoyed this article and feel free to supply feedback. We appreciate our readers & love to hear from you!