In any marriage, understanding the intricacies of divorce and navigating the law can be overwhelming and complex. When it comes to same-sex divorce in particular, the LGBTQ+ community is presented with additional complexities, as these laws are ever-changing. If you are in a same-sex marriage and contemplating divorce, naturally, questions and concerns arise. Here is what you need to know to navigate same-sex divorce in Colorado.
Understanding Same-Sex Divorce Laws in Colorado
Same-sex marriage in Colorado became legal in October 2014. One year later, the U.S. Supreme Court legalized same-sex marriage throughout the United States. This ruling officially made all marriages equal under the law and all divorces fall under the same laws that are already established for heterosexual couples.
Colorado is a “no-fault” state, meaning that couples are not required to provide proof or reasoning as to which spouse is “at fault” in order to dissolve their marriage. The only requirement for dissolving a marriage is alleging that the marriage is “irretrievably broken.” However, same-sex couples continue to face new obstacles throughout the divorce process as issues tend to arise with evolution of same-sex marriage laws. Some of these issues include common cohabitation, common law marriage, second-parent adoption, spousal support, child custody and child support, among others.
Common Cohabitation
Prior to the federal legalization of same-sex marriage in 2015, it was common for same-sex couples to have lived together without a legally binding marriage license, which tends to complicate divorce proceedings more so than it would in a heterosexual relationship due to the accumulation of common assets and debts during cohabitation. The more assets that same-sex couples purchase together before legally binding the marriage can grow to complicate the divorce when it is time to determine which assets belong to which spouse.
In a heterosexual couple’s divorce, asset division is generally easier to navigate since there is a distinct line drawn of when the marriage began, whereas same-sex couples tend to face a longer period of cohabitation prior to marriage. Since the legalization of same-sex marriage, this scenario can now implicate common law marriage principles as well.
Spousal Maintenance/Support
Living in a more progressive world than years before has caused revisions to the way spousal support is interpreted and distributed, and the way judges rule during divorce proceedings. Family courts are now eliminating traditional gender roles in alimony and spousal support (now known as maintenance), further streamlining same-sex divorces.
Modern courts are considering the term of the marriage, individual contributions, tax consequences and standard of living, as well as parental roles and the future of those roles as the couple separates.
Regardless of gender identity, if one partner has been solely supporting the other financially, the court may rule it necessary to continue the support for a period of time following the divorce. Although it may seem unjust, spousal support is a system designed to defer financial instability immediately following the divorce for the other party, after careful consideration of said partners’ contributions to the marriage.
Child Custody and Support
In families involving same-sex couples that have biological parent-child relationships, the inclusion of the additional parent figure can be affected. In these instances, LGBTQ+ parents without a biological link to their child face the potential of missing out on court-maintained visitation.
For couples facing this issue that want to prevent this, the non-biological parent must also legally adopt the child prior to the divorce. By doing so, the court will recognize both parents as equally responsible for custody following the divorce.
If the non-biological parent forgoes adopting their spouses’ child, they are not liable for paying child support. This can be troubling to the biological parent, as they will face raising the child alone, as well as being solely financially responsible. Same-sex divorces where one parent has not adopted the child or does not appear on the birth certificate differ from heterosexual divorces in that both parents in heterosexual divorces are responsible for the continued health and well-being of their children and are not excused of child support unless otherwise stated by the court.
Protect Your Future
Navigating same-sex divorce, and the intricacies that may come with it, is not something you should solve on your own. It is important to consult with a legal team that specializes in representing non-traditional cases and can help you understand these evolving laws and the direct impact these situations can have on you and your family.
About Blake Barnett
This article is featured on Attorney at Law Magazine.