On June 26, 2015 the United States Supreme Court decided that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the US Constitution. This had a major positive impact on both same sex couples’ eligibility to marry, and divorce in any US state.
With the Supreme Court ruling for Obergefell v. Hodges, now any married same sex couple can also get a divorce. Prior to the ruling, if a couple was married in a state that supported same sex marriage, but had residency in a state that did not support same sex marriage, the couple could not get divorced in their own state.
To further complicate matters, many states that allowed same sex marriages also required residency to divorce! In this catch-22, a couple - or at least half of that couple - would need to move back to the state they married in to establish residency (ranging from 6 months to 2 years) before filing for a same sex divorce.
Now, with the court ruling, all same sex couples can marry and divorce in the US and each state must recognize these separations. A divorce should be filed where you or your spouse reside. You do not file in the state or country where you married, but rather where you live.
Yes. DIY divorce for same sex couples is possible and follows the same process and requirements as a heterosexual divorce. A DIY same sex divorce is often much easier if there is no argument over division of property, child support, and a custody. But, if both parties are able to come to an agreement, a DIY same sex divorce is the least expensive, easiest way.
The requirements for same sex divorce are now much the same as those for any divorce. Each state has its own requirements in terms of residency, length of time between divorce papers being filed and divorce being granted, etc.
In Florida, for example, you are required to file your divorce papers in the county where you live. The state also requires you to have been a resident of the county where you file for six months or longer before you are allowed to file divorce forms.
Division of Property: Because many same sex couples were together for a significant amount of time prior to being married (since it wasn’t an option), common law-states will now likely recognize that spousal support and division of assets applies to same sex common law situations as well.
Child Custody and Support: For same-sex married couples with children, as with straight couples with children, divorce will likely be more complex. Before the recent ruling, the parent with legal rights had all the rights. Now, state adoption laws will have to allow non-birth parents to adopt a child their partner gives birth to or adopts. Also, even in cases where a parent isn’t on record as the legal guardian, a court may still rule for the other parent.
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