The 2003 landmark court decision, Goodridge v. Department of Public Health, 440 Mass. 309, 324 (2003), issued in new rights, legal issues and additional questions for couples wishing to marry in Massachusetts. The Goodridge Court held that the Commonwealth of Massachusetts could not “deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry.” On May 17, 2004, the right to marry was available to same-sex couples in the Commonwealth. Since that time, thousands of same-sex couples have been married in Massachusetts. By 2008, couples residing in states outside of Massachusetts were also extended the right to marry in Massachusetts.
Divorce for Lesbian and Gay Couples
With the advent of same-sex marriage comes (unfortunately) the advent of same-sex divorce. For couples married in Massachusetts and residing in Massachusetts, same-sex married couples follow the same basic Massachusetts statutory framework and rules which govern the division of assets and alimony in other divorce cases. Child support and custody issues, however, may be more complicated depending on the legal relationship between the children and the parents.
For couples who marry in Massachusetts but then move to a state or country which does not allow same-sex couples to marry, divorce may be much more complicated. In these cases, the state may or may not recognize the couple’s marriage and may not have a system in place to provide for the division of assets, alimony and child support.
Non-Married Lesbian and Gay Couples
So what happens if same-sex couples who never marry decide to split up? Some couples choose to draft a cohabitation agreement, in which they enter into a formal contract pertaining to their property and finances. Often these agreements contemplate the dissolution of the relationship and division of assets.
Similarly, some couples who never marry, do not draft a cohabitation agreement and later decide to split up, retain an attorney or mediator to assist them with their division of property and finances.
Child Custody and Support
And what about the kids? If each parent has a legal relationship with the child as a biological parent or through adoption, child custody and support issues are usually decided according to existing child custody (link to TDC child custody page) and support (link to TDC child support page) statutes. A parent seeking visitation time with a child with whom the parent has no legal relationship may also attempt to establish visitation, custody and/or support by petitioning the court to be recognized as a “de facto” parent.
Mediation and Collaborative Law
The mediation and collaborative law processes are both great options for same-sex couples navigating the issues of divorce, breakup, custody and property division. Mediation allows divorcing couples to navigate the divorce process with the guidance of a neutral mediator, while simultaneously saving money, working together, and maintaining privacy. Collaborative law allows parties to work through the divorce process with a team of attorneys trained in the collaborative process and other outside neutral experts who help the parties negotiate a mutually acceptable settlement.
This is just a brief overview of some family law issues same-sex couples face.
For your confidential consultation at our Medway or Burlington office, please call The Divorce Collaborative at (508) 346-3805.
www.glad.org Gay & Lesbian Advocates & Defenders
www.thetaskforce.org National Gay & Lesbian Task Force
www.advocate.com The Advocate