Last month’s U.S. Supreme Court decision solidified same-sex couples’ right to marry. Of course, the right to marry also brings the right to divorce. Research shows that the LGBT community has approximately the same divorce rate as the heterosexual population, so there will be a need for family law attorneys who understand the unique issues that sometimes arise in same-sex divorces.
Perhaps the most contentious issue in all divorces is child custody. While Arizona courts use universal criteria to determine the custody of children – whether the custody dispute involves gay or straight couples – there may be unusual situations in same-sex child custody proceedings, including surrogacy, co-parenting and adoption. Will courts consider custody arrangements favoring one parent because he or she shares common genes with the child?
Another potential issue in same-sex divorce is common law marriage. Arizona does not recognize common law marriage, a legal theory that considers a couple legally married if they have lived together for a long time and generally behave as if they are married – despite not getting a marriage license or civil union. However, if common law marriage was established and formally recognized in another state, such as Colorado, Arizona honors that recognition.
It remains to be seen whether states with common law marriage will include same-sex relationships in their recognition of marriage – legally, states may be compelled to. This may present difficulties resolving issues like property division.
It will probably take awhile for the legal system to provide clear answers to some of these issues. It is crucial to partner with an experienced family law attorney who will adeptly represent your interests in an area of Arizona law that is not yet well-developed.
