THE BLOG
05/13/2013 12:08 pm ET Updated Jul 13, 2013

Tips on Avoiding Same-Sex Divorce Complications

Eleven states throughout the country have now fully legalized same-sex marriage and the Supreme Court recently made headlines by hearing two very important cases regarding the Defense of Marriage Act (DOMA) and Proposition 8 in California. As a result, it is becoming increasingly likely that many more same-sex couples will be marrying and that many others will come to know an increasingly greater number of family members, friends or co-workers who will eventually consider exchanging vows with a partner.

As we know all too well with heterosexual couples, some of these marriages will inevitably lead to divorce proceedings. With state laws varying so widely and more than 1,000 different rights being directly impacted and denied on the federal level by DOMA, it is particularly essential for gay couples who are facing this process to be properly informed and prepared as early as possible.

First, be aware of all the latest marriage laws in your state. If you and your partner move to another state after the marriage takes place, then doing this research now is of the highest importance and might reveal some possible obstacles. Give serious consideration to a prenuptial agreement that defines your rights in the event of divorce or death regardless of whether or not the jurisdiction where you ultimately come to reside recognizes same-sex marriages. And, be sure to find out if the laws on child custody will somehow impact your rights to access in the event of divorce if only one parent is the natural parent or if only one parent adopts the child.

While 11 states and the District of Columbia allow same-sex marriages, and others offer civil unions or domestic partnerships -- more than half of the country still does not allow for same-sex marriage. In addition, it is crucial to note that most of these states with bans in place will not even recognize legal unions that have previously existed elsewhere. To make matters even more confusing, some of these states will actually legally recognize a same-sex marriage during a divorce even though they do not currently allow them within their own borders. The Pew Research Center has a map which keeps track of the status of same-sex marriage laws throughout the states, which can serve as a helpful guide.

If you and your spouse are in a state that fully recognizes same-sex marriage, then you should proceed with the divorce in a diligent and organized way. Research and select an experienced and respected attorney with whom you feel comfortable. Effectively secure all your financial records and make copies of everything and anything that might be considered important during the divorce process. Makes sure any current or previous agreements are in order, as well. Some gay couples often draw up a cohabitation agreement before making the commitment to live together. Even though the couple might have entered into a marriage afterward, these early legal agreements can still hold great consequence during divorce proceedings.

If any children were born or adopted during the marriage, provision of rights for the other spouse should be determined and access to the child should be mutually agreed upon. It is also a good idea to keep track of the amount of time that you spend with the child on your own. Chronicle the decisions you have been involved in, all the positive things you have contributed, and how active you are in the daily life of the child. Even if you are not the biological parent, some states such as New York, do give special legal consideration to the parent who has been consistently providing psychological and emotional support to a child. As with all parents facing a divorce, never fight in front of the child and always try to shield them from any disputes that you might be having with your estranged spouse or partner.

While divorce is never an easy process, same-sex couples are well advised to do an extra amount of research and homework before filing. It could help to seriously reduce some of the unexpected bumps that you might encounter on the legal road ahead.

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