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Same-sex marriage and divorce laws continue to be complex

Just last month, Illinois’ same-sex marriage law went into effect. As a result of the new law, not only are the marriages of same-sex couples who choose to marry today legally recognized, but the existing civil unions between same-sex couples can also be  legally converted to marriages.

As the same-sex marriage bans in state after state are deemed unconstitutional, some reason it’s only a matter of time before there is no distinction between hetero-sexual and same-sex marriage. While this will likely be true for future generations, today, many same-sex couples who choose to subsequently split up or divorce face legal obstacles and challenges when attempting to obtain a formal divorce and sort out child custody matters.

Take for example, a lesbian couple who was married in a state where same-sex marriage is legal. The couple then relocated to a state where a ban on same-sex marriage still exists. A short time later, the couple decided to have a child with one of the woman using a sperm donor. Not long after the child’s birth, the couple decided to divorce. The state in which the women live, however, does not recognize same-sex marriage and therefore cannot grant the women a divorce.

In these types of cases, matters related to same-sex marriage and child custody can become very complex and contentious. In this case, it’s likely one or both of the women would need to move back to the state in which they were married, or another state that recognizes same-sex marriage, and establish residency prior to seeking a legal divorce.

Likewise, child custody disputes among same-sex couples often favor the spouse who is biologically related to the child. In child custody cases where a non-biological father or mother failed to take steps to legally adopt the child or obtain guardian rights, he or she may encounter problems when trying to obtain legal parentage and custody rights.

Laws related to same-sex marriage and divorce are often complex and confusing. For these reasons, gay or lesbian individuals who wish to obtain a divorce would be wise to seek the advice and guidance of an attorney who handles same-sex divorce cases.

Source: The Huffington Post, “Marriage Equality, But What About Divorce?,” Elizabeth Ann Thompson, July 14, 2014 Chicago Tribune, “Gay marriage legal across Illinois: County clerks to issue marriage licenses and convert civil unions as law begin,” Stephanie K. Baer, June 1, 2014

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