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Special considerations for same-sex marriage and divorce

On Behalf of | Aug 3, 2022 | high asset divorce |

The federal mandate for marriage equality also meant divorce equality. However, there are some wrinkles in practical application.

How will parents maintain the parent-child relationship?

For non-heterosexual couples, parentage is an intentional process that may or may not involve some biological link between the parent and the child. There are a lot of options, but all may cause unique legal issues.

For example, for a lesbian couple, one woman may donate the egg, and the other her womb. For a male-male couple, perhaps, the egg is donated by one spouse’s relative, and then the sperm is donated by the other parent. Or, maybe the biological connection only flows to one parent. These are all complicated issues that, depending on the specifics, may mean different parental rights.

How will property be divided?

In any Michigan divorce, property is divided based on the marital estate. The marital estate consists of all the property accumulated during the marriage. For opposite-sex couples, this definition is usually not problematic, as the time before the marriage is usually only a few months, a year or a few years. This is not the case for many same-sex couples. Because their freedom to legally marry is a fairly recent legal requirement, many same-sex couples were together for many years before they married.

As such, if there was a large accumulation of property (home, car, business, etc.) prior to the marriage, that property could very well be treated much differently than had it been acquired during the marriage. This is a huge practical difference for same-sex couples navigating the divorce process.

Can we take this out of a judge’s hands?

Yes. Through documenting the wishes of the couple now in a pre-nuptial, post-nuptial, etc. agreement, the couple can outline their wishes now. This will ensure that your children’s future is not left up to a randomly assigned, disinterested family court judge. It will also ensure that the property is split according to the couple’s wishes now, before a falling out.