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The Right to Divorce for Same-Sex Couples

The Right to Divorce for Same-Sex Couples

The recent U.S. Supreme Court Ruling in Obergefell v. Hodges declared unconstitutional any state law which prohibited same-sex marriage. This ruling not only protects a same-sex couple’s right to marry, but also their right to divorce. Divorce laws are governed by state and vary from state to state. Prior to this ruling, a same-sex couple who was legally married in one state, but lived in a state that did not recognize their marriage, could not avail themselves to the protections of divorce, custody or support laws of that state. This meant gay couples, especially those with children, looking to divorce were left with difficult decisions. Couples either had to have the foresight to carefully draft domestic-partnership agreements, or litigate property issues under property or landlord tenant laws which do not afford the same protections as divorce laws. Since this Supreme Court ruling, all married couples are now protected by divorce laws in each state.

How does the Pennsylvania Divorce Code protect same-sex couples?

Now that gay marriage is recognized across the country, any couple legally married may also legally divorce. The Pennsylvania Divorce Code, found in Title 23, Section 3101 et seq., protects one’s right to equitable distribution of marital property (generally any property acquired by either party during the marriage or any increase in value of non-marital property). Equitable distribution is the ability of the court to equitably divide all assets and debts between the parties in accordance with a variety of factors including the length of marriage, sources of income for each party, either party’s role in the marriage as a homemaker, and the economic status of each party at the time of divorce. The Divorce Code also allows a spouse to seek alimony, support, counsel fees and expenses.

How does Pennsylvania law determine the date of marriage for same-sex couples?

Although gay marriage is now legal in the United States, there remain complex issues which have not yet been addressed. For example, in Pennsylvania, marital property is generally defined as any property/asset or debt which you acquired from the date of marriage through the date of separation, and any increase in value for property/assets acquired prior to marriage. Therefore, the date of marriage becomes a crucial component for determining equitable division of marital property.

If a same sex couple has been living together as a married couple for many years, and then gets legally married as soon as gay marriage is legalized, is the date of marriage the date the marriage was legalized, or is it the date the two considered themselves to be a married couple? This is an area which has not yet been litigated. There is certainly an argument to be made that the protections of the divorce code should be made retroactive. This may be especially important for couples who may have been together for ten or twenty years, own joint property, have children together and have held themselves out to the world as a married couple.

How do Pennsylvania custody laws apply to gay couples?

This is an area of the law where there may still be quite a bit of litigation in spite of the recent Supreme Court ruling which legalized gay marriage. The reason for this is because children of same-sex couples are often the biological child of only one parent, or adopted by only one parent, thus creating a complex legal situation for other parent. However, Pennsylvania recognizes something called in loco parentis, which simply means that the individual stands in the position of a parent. The law states that if a third party stands in the position of a parent, he/she may sue for custody of that child. It is a question of fact whether someone stands in loco parentis, but this doctrine will generally apply to anyone who can demonstrate that he/she assumed the role of a parent, even if not biologically-related. While this rule was not initially enacted to aid same-sex couples, it has successfully been used in court to provide same-sex spouses or partners with standing to bring a custody action.

Hire an attorney before a problem arises:

While the Supreme Court ruling has extended same-sex couples the same right to marry as heterosexual couples, there remain complex legal questions for same-sex couples when it comes to divorce, support and child custody. Knowing the law is an important step to take in protecting yourself, your spouse and your children before a problem arises. For this reason, it is best to talk with a Pennsylvania family law attorney who has experience and understands the unique issues a LGBT family will face.


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