LGBTQIA+ Divorce in AZ: Everything You Need To Know

In 2015 LGBTQIA+ marriage was legally recognized in the United States when the US Supreme Court issued the Obergefell v. Hodges ruling. From that point forward, couples were granted access to the same rights as heterosexual spouses. This change opened up many doors for LGBTQIA+ couples and their families and provided them with the same legal expressions of love and commitment granted to other married couples.

While no one enters into a marriage with the intent that it will end, not all marriages last; this is true for LGBTQIA+ spouses as well. No matter what type of relationship you are in, divorce can be difficult, with important agreements on the division of assets, child custody and support, and spousal support at stake. While there are significant challenges to overcome, LGBTQIA+ couples have the right to pursue divorce to dissolve an unfavorable marriage.

With the help of a Phoenix LGBTQIA+ divorce lawyer familiar with state and federal family law for same-sex couples, you can gain valuable insight that can help you navigate the difficulties of divorce. Learn more about the unique aspects of LGBTQIA+ divorce from the professionals at The Valley Law Group.

Same-Sex Divorce in Arizona

The most pressing question for most same-sex couples facing divorce in Arizona is often whether they can expect the divorce process to be the same as their opposite-sex counterparts.

While there are other unique challenges surrounding LGBTQIA+ divorce, the legal procedure for both types of divorce is the same, and spouses retain the same rights.

Divorce Process

The divorce process is the same as in other divorces and consists of the following steps:

Residency Requirements

All couples wherein at least one spouse wishes to dissolve the marriage must first meet the state residency requirements for a divorce filing. Under this law, at least one or both partners must have lived in Arizona for at least the prior 90 days before the filing.

Grounds for Divorce

Arizona’s no-fault divorce law allows spouses to simply assert there have been irreconcilable differences between the parties that have rendered the marriage irreparably broken. Other than this, no grounds for divorce detailing marital misconduct are required.

Divorce Agreement

Decisions pertaining to the separation of a marriage such as asset division, spousal maintenance, child custody, and child support must be made. These decisions will be detailed in a divorce agreement. If the spouses cannot agree, they may pursue alternative dispute resolutions, including collaborative divorce, mediation, settlement conferences, and other similar programs. If feasible, these options can be advantageous for spouses wishing to avoid extended trial and court expenses.

If no agreement can be reached, the spouses must proceed to litigation, where a Family Court judge will have the final say regarding the divorce agreement.

Legal Separation

LGBTQIA+ couples may also choose to file for a legal separation with the same rights and legal proceedings as other couples. They may also file for an annulment if conditions are right. Regardless of which choices the couple makes in dissolving the marriage, they also have the same right to choose an alternative dispute resolution method for their divorce or separation.

Unique Challenges Same-Sex Couples Face in Divorce

LGBTQIA+ couples going through a divorce or separation may have unique concerns to consider.

Timing of Spousal Rights

For this group, spousal rights only begin after an official marriage union takes place. This means that couples in established domestic partnerships, civil unions, or common-law marriages are not given marital benefits, nor are they recognized at the state level in Arizona.

Commingling of Assets

Relationships begin long before a wedding. For many same-sex couples, this time together is often a much longer time frame than some heterosexual couples creating unique sets of challenges. Because of this, the commingling of finances and assets may begin well before the wedding bells. Unfortunately, this cohabitation makes dividing assets more difficult as the line between marital and separate property is blurred.

Interstate Issues

While same-sex marriage is legal in Arizona, if the couple is married in a different state, they could find themselves in a marriage that may not have been legitimate from the start. The laws governing local municipalities and states will help to dictate what divorce may look like in Arizona.

Custody and Child Support Issues in Gay and Lesbian Divorce

Child custody is often a highly sensitive and contested matter during any divorce, particularly for LGBTQIA+ spouses. Though they are entitled to the same parental rights as heterosexual couples, determining child custody can be an extremely difficult and drawn-out process. In cases where the couple has adopted children together, both spouses have a legal argument to retain custody.

Unfortunately, many LGBTQIA+ couples encounter roadblocks when they choose to utilize the services of a surrogate donor, as they cannot conceive through traditional means. While the couple may share parenting responsibilities and claim the child as their own, the law states that unless the child is adopted, custodial rights are prioritized to the biological parent. Arizona law prevents a birth certificate from listing two mothers or two fathers. Therefore, couples may need to establish other means of determining parenthood.

One such way that LGBTQIA+ couples can ease the burdens associated with settling custody is through the use of a pre or post nuptial agreement. Under these legally binding agreements, couples can ensure that they identify specifically what child custody and support should look like in the event that the marriage ends.

These are just a few of the challenges LGBTQIA+ couples could experience in the event of an ending marriage. For specific details on your circumstances, an experienced family law attorney can help.

Ending Domestic Partnerships

LGBTQIA+ couples may find that despite the great efforts in fighting for the right to marry, equal efforts to secure same-sex domestic partnerships or other civil unions with similar rights and benefits as marriage have yet to be seen. When LGBTQIA+ couples gained the right to marry, many same-sex couples lost the right to enter into domestic partnerships.

Since the Supreme Court granted LGBTQIA+ partners the ability to marry, fewer states than ever recognize or offer any form of custodial rights or shared employment benefits for domestic partnerships. Arizona is included in those states that do not grant any rights for any type of domestic partnership. Couples who cohabitate but have yet to marry run the risk of losing certain rights in the event of separation. This includes entitlement to community property and alimony benefits or custody of children.

Although domestic partnerships are not recognized statewide, some municipalities will recognize this union and have specific requirements that couples must follow to establish these relationships. If a same-sex couple opts to get married after being in an official domestic partnership and decides to separate or divorce, they will need to terminate their registered partnership along with any other non-marital unions they may have registered in other states.

Since Arizona recognizes civil unions and common-law marriages established in other states, these will need to be terminated according to Arizona divorce procedures regardless of whether the couple is legally married or not.

Issues All Divorcing Couples May Face

In addition, all couples risk stumbling blocks regarding these crucial divorce issues.

Dividing Community Property

All acquired or purchased properties and incurred debts of either spouse during the duration of marriage must be divided.

This includes:

Assets excluded from spouses’ community property include inheritances, gifts not given by one spouse to the other, and any separate properties or financial obligations acquired by either individual prior to the marriage.

It is up to the judge which assets acquired during this time should be designated as one spouse’s individual and separate property. Judges have the authority to rule a particular property as a community or separate property but must consider all relevant factors. While family courts conduct a fair and equitable division of property according to the law, an out-of-court negotiation or settlement is a feasible option. Same-sex spouses may find that reaching a property division agreement tailored to their specific circumstances is ideal and potentially the most fair approach.

If the spouses settle on a property division agreement amongst themselves, they will need to submit it to the court for approval. Minor changes may be warranted, but it is generally accepted if both spouses agree that it is fair.

Spousal Maintenance

Either party within a same-sex marriage may be granted spousal support. The court may award a spouse financial support if the requesting party meets at least one of the criteria to be eligible for spousal maintenance.

Spousal support can be awarded for a number of reasons.

The most common reasons include if one spouse:

Along with these qualifying conditions, the judge must also consider all factors relevant to the spouses’ marriage. Such considerations may include the quality of life the spouses shared, if either spouse sacrificed career opportunities in order to support the other, the length of marriage, and whether either spouse negligently handled or hid assets either during the marriage or divorce.

Benefits of a Lawyer for Same-Sex Divorces

While no one is legally required to hire an attorney instead of representing themselves, there are numerous advantages to having educated legal counsel during a divorce. For LGBTQIA+ couples particularly, ensuring you have strong representation during a divorce can be vital to obtaining a fair and positive outcome. Although you may wish to approach your divorce without the help of an attorney in the hopes that you and your spouse will reach an amicable agreement, these conversations can often turn contentious and could result in unfair conclusions.

An attorney experienced in LGBTQIA+ family law proceedings can help to navigate both direct and indirect difficulties facing these couples. Here are some of the challenges an attorney can help you face.

Fighting Legal Bias

Although progress has been made in many systems for LGBTQIA+ couples, many laws have yet to catch up. Additionally, biases may exist within the legal system that could lead to unfair settlements. With the help of an attorney, you can navigate these challenges and seek a resolution that ensures your rights are protected and that you receive due process that is free from prejudicial decisions.

Addressing Length of Marriage Issues

The length of the marriage can play a big role in determining many of the final divorce decisions that you will need to settle. However, because of the limitations placed on LGBTQIA+ couples in relation to domestic partnerships, child custody, and more, navigating the picture of what the relationship was like prior to the marriage could play a role in these decisions.

Constructing Parenting Plans

The unique challenges associated with child custody could greatly benefit from the assistance of an attorney. With their help, you can establish a parenting plan that is equitable to both parties in the hopes that the child will continue to benefit from both parents. However, if limitations need to be placed on your spouse for the benefit of the child’s safety, your attorney can help ensure this happens as well.

These are just a few of the ways in which you could benefit from the help of a knowledgeable and experienced attorney. Speaking with a divorce attorney can ensure your rights to property, alimony, and custody are protected and adequately advocated for.

Skilled Same-Sex Divorce Attorney Ready to Represent You

The Valley Law Group has years of practical experience assisting clients in LGBTQIA+ marriages and partnerships with their legal needs. Whether you need representation for a comprehensive divorce or legal separation, our knowledgeable team can provide the counsel you need.

Schedule a consultation with our skilled Arizona LGBTQIA+ divorce attorneys today. Divorce can be complicated and filled with emotion, but our experienced legal team can help you focus on a fair settlement while taking the first steps in a new direction.