It wasn’t many years ago that the White House was bathed in rainbow lights to herald the Supreme Court decision making same-sex marriage legal throughout the United States. A marriage between partners of the same sex is now, simply, marriage. But while same-sex spouses are legally the same as any other married couple, there are still some unique challenges to address within a family law dispute.
Strickler, Platnick & Hatfield is committed to achieving our clients’ goals in family law disputes such as divorce, child custody, or support. Family law statutes in Washington D.C. were not written with same-sex marriage in mind and may yield an unjust result when applied in a dispute between spouses of the same sex. We are sensitive to this possibility and strive to advocate creatively for our clients to ensure a just outcome and a favorable result.
Even when parents end their romantic relationship, they are still connected through the children they love. Any divorce is complicated by the need to decide the issue of child custody, because the law requires that a custody arrangement be in the best interest of the child. Unfortunately, the complexity of a custody case often increases when one or both parents are members of the LGBTQ community.
Many same-sex partners committed to a life together long before they were legally allowed to marry, and that shared life may have included children who were the legal child of one, but not both, parents. Even though both parents may have raised the child from birth, an adult who is not the biological or adoptive parent of a child has no legal rights as a parent. They are not entitled to custody, visitation, or even a say in the important decisions about the child’s life, such as education and medical treatment. The sudden severing of a relationship between a child and someone they love as a parent can be devastating.
There may also be difficulties even when a child was born after the marriage of their same-sex parents. Family law treats a child born to, or conceived by, a woman during her marriage as the legal child of her spouse. Because same-sex marriage is so new, it is not yet clear whether courts in Washington D.C. will apply the same presumption to the same-sex spouse of the child’s biological parent. By the same token, there have been few cases dealing with child support obligations and rights in such a situation.
The District of Columbia is an “equitable distribution” jurisdiction. That means that marital property is divided between divorcing spouses in a way that is fair under all the circumstances. It may not be exactly equal, but is usually equitable. Generally, property acquired by either spouse during the marriage is considered “marital,” while that owned by either spouse before the marriage is usually considered “non-marital” and not subject to division in the divorce.
The difficulty that arises for same-sex spouses is that they may have joined their lives and finances for years or decades before they could legally marry. That may result in property the couple acquired together prior to their marriage being treated as separate property belonging to one spouse. Accordingly, and without close monitoring, one spouse could end up with a disproportionate share of the assets accumulated during the relationship.
Often, one spouse takes on the role of breadwinner in a marriage, while the other assumes responsibility for caring for the children and home. If a couple divorces, the stay-at-home or lower-earning spouse may be awarded alimony to help them stay afloat financially until they are able to become self-supporting.
One of the factors courts consider when deciding whether to award alimony, and how much and for how long, is the length of the marriage. This can lead to an unfair result for a lower-earning spouse in a same-sex marriage; the couple may have been a family unit for decades, but legally married for only a few years. As with property division, this can leave one spouse with much less than they would have received had they been able to marry earlier.
Because most of the District of Columbia laws dealing with the issues above were written with opposite-sex couples in mind, relying upon the courts to apply those laws can lead to an unfair outcome for same-sex spouses. A better option may be for couples to work together with their attorneys to negotiate a settlement that reflects the reality of their history and family. Doing so allows the couple to consider their family’s unique needs and ensure that they reach a favorable settlement.
Our attorneys are well-equipped to assist divorcing couples in reaching agreement regarding property division, child custody and support, alimony, and other issues. We have helped hundreds of couples to negotiate the terms of their family law matters. We offer clients a variety of alternative dispute resolution (ADR) options, including family mediation and Collaborative Divorce, so that they can receive the support they need to reach an agreement that works for them.
There are times that, for whatever reason, a same-sex couple cannot settle their divorce or custody dispute and must litigate. When that happens, it is crucial to have the representation of attorneys who understand the risks and what is at stake. At Strickler, Platnick & Hatfield, we approach trials of family law disputes strategically and with a tactician’s eye. In areas such as family law disputes involving same-sex couples, where the law may be unsettled, we carefully craft and present compelling arguments designed to achieve our client’s objectives. We invite you to contact Strickler, Platnick & Hatfield to schedule a consultation regarding your situation.