Southfield, Mich. – Nov. 4, 2013 – With only 14 states and the District of Columbia currently recognizing gay marriage, access to marriage is not the only obstacle gay couples face. Additional obstacles arise when dealing with custody and divorce, according to Jessica Woll, managing partner of Woll & Woll, P.C., a Michigan-based divorce and family law practice with a niche expertise in complex family law issues.
Woll notes the number one challenge for gay couples who seek to uncouple hinges on their residency.
“If a couple resides in a state that does not recognize gay marriage, those individuals cannot use the court system in their home state to get a divorce,” said Woll. “Therefore, the only way to get divorced is to move and establish residency in a state that does recognize gay marriage – a process that typically requires a person to reside in the state for a period of six months.”
The issue of residency also impacts the divorce process for gay couples when dividing marital assets.
“If an individual lives in a state that does not recognize gay marriage, the court in that state may not grant the individual rights to one-half of the marital assets in the spouse’s name. This can cause financial hardships if that individual is not the wage earning spouse,” said Woll.
Married or not, gay couples often face additional challenges when it comes to custody and parenting time, especially when artificially inseminated and adopted children are added to the equation.
“As far as children are concerned, this is an extremely controversial issue right now,” said Woll. “There is no uniformity between states regarding the determination of a non-biological parent’s rights in a same sex marriage.”
The first question to ask is whether the child is legally the child of both spouses.
“If one spouse is the biological parent of a minor child and the other spouse did not legally adopt the child, the non-biological spouse may not have legal rights to share in custody and parenting time,” said Woll. “Also, if one spouse is the biological parent of the child and resides in a state that does not recognize gay marriage, the non-biological parent may not have any rights to the child unless the non-biological parent adopts the child. Even if married in a state that recognizes gay marriage, if one spouse is not the biological parent and has failed to legally secure his/her rights as a parent through adoption, that spouse may not have any parental rights and may not be viewed by the court as the child’s parent,” continued Woll.
Beyond taking up residency in a state that recognizes gay marriage and taking other proper measures to ensure parental rights to children for both spouses, Woll urges gay couples living in a state that recognizes gay marriage to consider signing a prenuptial agreement to protect marital assets, address issues regarding children and ease in the process of divorce should that become necessary.
“Until all 50 states recognize gay marriage, and divorce and custody issues are held to the same standards for gay couples as they are for heterosexual couples, I suggest gay couples consider a prenuptial agreement,” said Woll. “Because prenuptial agreements require an engaged couple to determine their rights to property in the event of a divorce, it is my experience that if both parties are happy with the terms of their pre-nup going into the marriage, it is likely they will follow the terms if they call it quits.”
About Woll & Woll, P.C.
Woll & Woll, P.C. specializes in divorce and family law, including legal separation, post-judgment of divorce matters, removal of domicile actions, stepparent adoption, custody, child support, paternity and other family issues. Learn more here.