Following the landmark decision of Obergefell et al. v. Hodges, many Americans were for the first time free to marry the person of their choice. Of course, like any marriage, LGBTQ marriages are not always forever. But when a same-sex (or “nontraditional”) married couple must divorce, there are often complications that South Carolina judges may not yet fully be able to appreciate. Here are some special considerations when deciding whether to divorce in South Carolina.
Here are three big considerations that may need to be addressed when a same-sex or nontraditional couple is divorcing:
Same-Sex Couples Are Likely to Have Long Relationships Predating Marriage
Same-sex couples have only been free to “legally” marry in all states since 2015. Prior to Obergefell, many couples around the country simply cohabitated in a marriage-like relationship, lacking the legal protections and paperwork of a marriage. Nevertheless, the differences are worth noting. For instance, when an opposite-sex couple has only been married two years, chances are very good that the couple has not had a lot of time to acquire properties together or amass a large marital estate. With a same-sex marriage, the couple may have owned a home together and share almost all possessions and even shared a bank account for decades before ever getting married in the eyes of the law. Thus, these things should be taken into consideration.
Parental Rights May Not Be Easy to Understand
For a number of obvious reasons, custody disputes can be complicated for LGBTQ couples. For instance, many of the tired old assumptions of male vs. female parenting are completely irrelevant and, indeed, impossible in these cases. Judges who may have historically been prone to awarding custody to a mother may have to actually rely on a more fact-intensive analysis when there are two fathers or two mothers. Where adopted children are concerned, there may be issues of parentage, as well. These can be sensitive issues to discuss, but they are real challenges that an experienced divorce lawyer should be involved in from the start.
There May Be Two Marriage Dates From Two Different States
Some couples obtained legal marriage certificates in a state that allowed marriage prior to Obergefell, such as Vermont or California, then remarried in their home state. Consider what happens if prior to 2015, a same-sex couple from South Carolina traveled to Vermont to obtain a legal marriage certificate. South Carolina would not have recognized the marriage, thus the marriage was largely ceremonial in nature. However, if the couple sought to re-marry in South Carolina following Obergefell, they would now have two marriage dates.
This can get confusing because technically a strict reading of the Supreme Court’s ruling would suggest that all states must honor the first marriage, as it was legal in the state where entered. Of course, the same ruling seems to suggest that South Carolina courts are only required to honor the second marriage. Depending on where and when assets and debts were acquired, this can create legal challenges during divorce.
Call a Charleston, SC Divorce Attorney Today
At Lauren Taylor Law, we carefully review each case as unique. We look for creative solutions to complex problems, and we understand that no two marriages are the same. If you make the painful decision to separate, call Lauren Taylor Law to discuss your options today.