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As more and more states legalize same-sex marriage, an increasing number of same-sex couples will marry and some of them will go on to experience the serious challenges that come with same-sex divorce. Divorce is tough for anyone, but same-sex couples do face a number of difficulties during divorce that heterosexual couples do not have to deal with, due in part to varying and evolving state laws, and conflicting federal laws.

Currently 11 states, including New York, and the District of Columbia do allow same-sex marriages. Some other states allow domestic partnerships or civil unions, and about half of the country does not allow same-sex marriage. Of those states that do not allow same-sex marriage, some recognize same-sex marriages that took place in other states, and some do not recognize these marriages. Further complicating matters, some of the states that do not recognize out-of-state gay marriages do still allow same-sex couples to file for divorce. So, how can gay couples prepare for divorce given this complicated patchwork of family laws?

  1. Research your state’s divorce and child custody laws. This will help you recognize any challenges and determine how to proceed. If you reside in multiple states, or you and your husband or wife do not live in the same state, this research may help you determine where to file. The Pew Research Center maintains a map on its website with same-sex marriage information for every state.
  2. If you live in a state that recognizes gay marriage completely, such as New York, begin securing copies of any important financial documents. Copies of co-habitation agreements entered into before marriage as well as prenuptial agreements can also be important.
  3. If children are involved, it is a good idea to obtain copies of any documented parental rights provisions. Additionally, it is wise to begin documenting how much time you spend with the child, how much you contribute and what important child-rearing decisions you are involved in. Here in New York, courts do recognize the relationship between the child and the non-biological parent.

These are just a few steps that can help one navigate the very complicated process of same-sex divorce. By doing one’s research and working with skilled legal counsel, it is possible to mitigate several of the challenges of the divorce process and become sufficiently prepared for the road ahead.

Source: Huffington Post, “Tips on Avoiding Same-Sex Divorce Complications,” Alton Abramowitz, May 13, 2013

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