THE BLOG

Facing Divorce? Top 5 Things Same-Sex Couples With Children Need to Know

02/20/2014 03:37 pm ET | Updated Feb 02, 2016

*Co-authored by Nadia A. Margherio, Attorney, Sodoma Law, P.C.

Has your spouse or partner recently asked for a separation or divorce? Are you contemplating a divorce and just don't know what to do or where to turn? Are you worried about how your decision will impact your children? Knowledge is a powerful tool and knowing what to do and where to go is critical when one is faced with a life-changing event such as a separation and/or divorce; and for same-sex couples with children, the combination of state-by-state and federal laws pertaining to their relationships can add complexity.

Here are five critical "Must Do's" when one party is calling it quits:

1. Know the law in your state regarding custody and support. Does the state you live in recognize same-sex marriage and second-parent adoption? Do non-relative third parties or grandparents have the ability to sue for custody of your children? Each state has its own laws regarding each of these topics. Other states are beginning to embrace these changes or may be silent on the issues altogether. While the federal law has changed for same-sex couples, as it relates to benefit availability, laws regarding custody, support and adoption have not yet all followed suit. You can find many legal resources online, including a number of legal blogs, but those cannot fully replace an informative consultation to get these questions answered.

2. Choose an experienced attorney who you trust. While lawyers are sometimes considered luxuries, when it comes to the complexities of same-sex families, it is important to consult with a lawyer who concentrates in the area of family law and has an understanding as to the same-sex laws in your state. Your lawyer can give you a strong education about the law in your state and how the laws apply to your particular circumstances. You may not need to hire the lawyer beyond the consultation but make sure that you get a foundation of information so that you can make informed decisions for you and your children. Access your local or state bar organization for help and for referrals.

3. Review agreements, if any. For whatever reason, even though the law is unsettled on various same-sex issues, many same-sex couples do not look beyond their vows when creating a family. Did you sign an agreement or other contract during your marriage that established parenting routines and responsibilities? Do you have any estate-planning documents that establish intention as it relates to the care of and support for your minor children? If not, please know that you could have done so, and that there is plenty of authority that would support its enforceability. Take heart -- regardless of your relationship status, you may create estate-planning documents and trust documents to protect your children's future and their ability to inherit from you.

4. Don't change your routine with the children because your partner tells you to. Intention, routine and previous responsibility weighs heavy in the court's eye. If you want to preserve your relationships with your children beyond your separation, don't walk away because your partner says you don't have rights. A biologically linked parent is not presumed to be the favored parent or the one that will automatically prevail in a courtroom. Understand what those legal rights are immediately and make sure to stay a part of the children's lives accordingly. Unilaterally changing the parenting routine and then asking for it to resume months later through the court system often affects your credibility. For example, if you moved from the marital residence and visited infrequently with the children, the court may assume that you thought it was in their best interests to live primarily with the other parent. Or, if it was not until the primary parent began dating again that you decided you wanted the children back in your care, your desires may carry less credibility and instead may come across as the scorned former partner. Dating is not usually grounds to modify a parenting schedule. Make decisions based on knowledge and information not emotion.

5. Understand your child support calculation. You may begin by gathering financial information. Most states require documentation on your gross monthly income as well as expenses related to the children's health insurance premiums, work-related childcare expenses, extraordinary expenses or other extracurricular activities. The legislature in most states has created a "guideline" calculation that is used to determine an amount of support that should be paid considering the children's accustomed standard of living, each parent's proportionate responsibility, obligations for other children and more. If your incomes are beyond the guidelines or, better yet, there is an opportunity to negotiate a different amount of support, consider it. There may be a chance to pay expenses directly to a provider or to share in expenses rather than pay direct support. Remember that most states will not allow you to "waive" child support obligations and can order that child support payments be paid retroactively for missed support.

In the end, if you find yourself in a position of being asked to leave or wanting to leave your same-sex partner or spouse, and you have children, be sure to protect yourself and seek the advice of a professional that can not only guide you through the process but can offer valuable information regarding your rights and your rights regarding your children. Knowledge is a powerful tool and is critical for those individuals that cannot, by default, rely on always being treated equally in their respective states.

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Nadia A. Margherio is a practicing attorney at Sodoma Law, P.C. in the family law and assisted reproductive technology practice areas. She is a member of both the North Carolina and Pennsylvania state bar and is a licensed Parenting Coordinator. Nadia holds a Bachelor's degree from Binghamton University, State University of New York, a Master's in social work from University of Maryland at Baltimore, and a J.D. from University of South Carolina.