Divorce for Same Sex Couples

Within the vast majority of locations within the United States, same sex couples are not permitted to legally marry. This means that when a same sex couple forms a partnership, they do not have the same legal obligations or protections that a married couple has. This also means when a same sex couple separates, they do not have to go through a divorce process. Still, although there is no divorce same sex couples may have issues as far as dividing up property, or sharing custody of any children they may have had or been raising together as part of their union.

Divorce and Same Sex Couples

Because a same sex couple cannot usually marry, they do not get the same protections in divorce, nor is there a court process to help them divide up assets and possessions. As such, it is generally a very good idea for same sex couples to create a cohabitation agreement and/or other legal documents before embarking on a relationship, in order to help determine what happens when that relationship ends. This becomes especially important when the couple either buys property, mixes money or brings children into the mix.

Same sex couples should account for:

• How custody will be determined. If you have a child with your partner (i.e. one of you carries a child with donated sperm or you have a child born to you by a surrogate mother) or you adopt a child, it is very important to protect your legal rights to that child. If you are not the biological parent, you will want to try to take steps whenever possible to formally and legally adopt the child. If you cannot adopt the child because his or her other parent refuses to give up rights, then you should draft a legal agreement dictating what custody arrangements will be used in regards to the child in the event you split up.
• How property will be divided. If you buy real estate or have other shared assets, the agreement should dictate how those assets will be divided. For example, you may want to specify which partner will have the opportunity to keep the house and what he or she must do to buy the other partner out.

Provided you draft a comprehensive agreement, when you are getting a "divorce," then you must both abide by the terms of that agreement. If not, it will be like any formal legal contract- the person who does not abide by the terms of the contract can be sued for breaching that contract.

Getting Help

If you are forming or ending a union with a same sex partner, you should consult with an experienced family law attorney. He can help you to understand how to protect yourself legally and can assist you in negotiating a fair agreement with your partner that gives you both equal rights and protections.