Representation for LQBTQ Spouses in Same-Sex Divorce
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Representation for LQBTQ Spouses in Same-Sex Divorce

The right to marry was affirmed for same-sex couples nationwide by the U.S. Supreme Court when it issued its 2015 ruling in Obergefell vs. Hodges. Marriage in Arizona between same-sex couples was only prohibited until October 2014, previously having been precluded by both state law and a 2008 voter-approved state constitutional amendment. The expansion of legalized marriage to include same-sex couples meant thousands of new marriages for the citizens of Arizona. Unfortunately, these marriages sometimes must end in divorce.

Divorce laws vary from state to state, and the introduction of same-sex unions into marriage laws means those same unions need legal avenues of being undone in divorce. In 2019, Arizona was estimated to have nearly 16,000 same-sex households where the occupants were legally married. Phoenix rated as one of the 10 largest cities in the country for number of married same-sex households.

There are specific laws and considerations that come into play for same-sex divorces in Arizona, and a licensed, knowledgeable, and experienced attorney should be retained by both parties.
Representation for LQBTQ Spouses in Same-Sex Divorce

Same-Sex Divorce FAQs

How Is Same-Sex Divorce the Same as Heterosexual Divorce in Arizona?

Just as when a man and a woman decide to end their marriage, the court must be convinced the same-sex marriage in question cannot be salvaged. In Arizona, if either partner testifies to the differences being irreconcilable, these are sufficient grounds for a judge to grant the divorce.
The court will also be tasked with common divorce considerations such as spousal alimony, division of assets and debts the couple shared, and whether one spouse owes legal fees to the other. As a community property state, Arizona divides all assets acquired during a marriage equally in both heterosexual and same-sex divorce cases.

What Common Complications Arise in Same-Sex Divorce Cases?

Custody of children is often a hot-button issue in a contested divorce. Even the most amicable couples can have a wedge driven in their divorce case when it comes time to sort out custody, visitation, and child support. While the heatedness a custody dispute brings isn’t necessarily different in a same-sex marriage from a heterosexual one, there are legal statues that come into play more often in same-sex unions.

A same-sex marriage is more likely to feature adoption or a third-party surrogate as the origin of the child or children in a marriage. Often a donor egg, sperm, or embryo is involved in the conception of a child. Under Arizona law, both parents in a same-sex couple are granted equal rights, regardless of which parent has a biological link to the child. Couples should work with a licensed Arizona attorney to preclude any potential snags of a custody claim from a biological parent outside the marriage, while ensuring both parents in the marriage maintain their proper standing for custody rights.

Same-sex couples have the same legal opportunity to adopt in Arizona. Unmarried couples are not permitted to jointly adopt in Arizona, but married couples enjoy equal adoption rights regardless of gender or sexual orientation.

What Other Considerations Are There If Children Are Involved?

If a child was born to one partner or adopted by an unmarried individual who later marries, the spouse should pursue a stepchild adoption to secure their rights in the case of a divorce. While this may sound obvious, consider there are births and adoptions that fall outside of the legal period in which same-sex marriage has been permitted in Arizona.

Same-sex marriage has been permitted for less than a decade in Arizona. A child born to or adopted by an LGBTQ individual in 2013 could conceivably have had a second parent marry into the family in 2015. In a contemporary divorce, that parent may have diminished rights regardless of whether the parents had a pre-existing relationship at the time of the birth or adoption.

With same-sex marriage now legalized, some cases have become less complicated as the children enter a family with an existing legal marriage. It’s much more likely the determining factor for custody and child support will be made under the guidance of the child’s best interest than anything to do with the biological connection.

Ultimately, when it comes to determining both custody and visitation, as well as child support, the judge will rule in favor of the arrangement that is in the child’s best interests

Why Do Couples Initiate Same-Sex Divorce?

The motivations for divorce our attorneys encounter are often similar among same-sex divorces and divorces between a man and a woman. The wide array of reasons for the irreconcilable differences that precipitate a divorce include:

  • Financial issues
  • Infidelity
  • Abusive relationships
  • Loss of emotional connection or intimacy
  • Disagreements on parenting
  • Incompatibility

All divorces in Arizona must be irreconcilable, whether the participants are same-sex couples or heterosexual couples. However, that doesn’t mean they have to be contentious. We see plenty of amicable divorce proceedings to end marriages in which neither partner is happy in the relationship, and both are ready to move on. The shift of laws over time plays a role in this instance for same-sex marriages as well.

While the right to marry was long sought after within the LGBTQ community—and for good reason—there are also many who have lost out on the so-called “right not to marry.” Fewer states than ever offer any type of custodial rights or opportunities for shared employment benefits for domestic partnerships, after the court granted the ability of same-sex couples to marry. Only six states still recognize civil unions between unwed same-sex couples. There are select municipalities, including two cities in Arizona, that do have domestic partnership registries for both same-sex and heterosexual couples.

Arizona as a state does not grant rights for any type of domestic partnership or non-marital union. Couples that cohabitate run the risk of one partner or the other losing legal rights to property or custody of children in the case of a split.

LGBTQ Divorce Law

Are There Common Law Marriages for Same-Sex Couples in Arizona?

A common-law marriage cannot be established in Arizona. However, the state recognizes common law marriages established in other states. In states that have common-law marriages for cohabitating couples, those laws can be applied to same-sex couples.

Adding complexity to the matter is that in some states a common-law marriage can be established based on a relationship that was occurring before the state in question legalized same-sex union. For example, Pennsylvania only recognizes common-law marriages established prior to 2005, and same-sex marriages were not legalized in the state until 2014. The Pennsylvania Supreme Court, however, has granted recognition to same-sex couples filing as having been in a common-law marriage since 2004 or earlier.

South Carolina, another state that did not permit same-sex marriage until 2014, had a same-sex common-law marriage from 1987 recognized. Some states have ruled to recognize retroactive common-law marriages for same-sex couples after one of the parties has passed away. Establishing that the couple was in a common-law marriage despite not being legally able to marry can create legal standing for issues like inheritance or custody matters.

Since Arizona recognizes other states’ common-law marriages, a couple that moves to Arizona and decides to end their marriage legally would need to follow divorce procedures. Seek advice from an experienced Arizona divorce attorney. Specifically, secure an attorney with experience with same-sex marriage and divorce, as this experience is critical for unsnarling the complex legal matter of dissolving a common-law marriage.

How Long Must a Couple Live in Arizona Before Filing for Divorce?

One of the two spouses must live in Arizona for at least 90 days before a divorce filing can be initiated in the state. Members of the military stationed in Arizona must be stationed in the state for at least 90 days before they can initiate a divorce in Arizona, as well.

If spouses who have separated are living in different states, the state in which a divorce is filed first has jurisdiction for the divorce. If an Arizona resident files for divorce from a spouse in another state, the divorce will take place in Arizona courts and under Arizona law. The court has jurisdiction to divide any assets of the divorcees in the state of Arizona.

Is a Divorce Attorney Really Necessary for a Same-Sex Divorce in Arizona?

While anyone can exercise their legal right to represent themselves throughout a divorce, Arizona’s divorce laws are complex. If there is property to divide or the couple has children requiring custody agreements, having an expert in understanding Arizona’s divorce laws is critical.

What Are the Differences Between Divorce and Annulment in Arizona?

A divorce legally ends a marriage, while an annulment effectively eliminates the marriage from record, as if it had never occurred. Annulments are typically reserved for instances of fraud, incest, bigamy, inability to consummate the marriage, and other severe issues. Community property and child custody are still issues that must be resolved prior to an annulment being permitted. Professional legal counsel is also important to have to maneuver through the complexities of seeking to have a marriage annulled.

Initiating Divorce Proceedings

Consult with a lawyer from the outset of any divorce case, including same-sex divorces. Retaining an experienced and licensed attorney is important for ensuring you follow all laws, acknowledge all rights, file all paperwork, and avoid unnecessary delays.

The spouse seeking the divorce must file divorce paperwork with the course and have it served on the other party in the divorce. Arizona allows 120 days for the papers to be served from the time the divorce is filed. The responding party then has 20 days to respond if they reside within Arizona, or 30 days if they reside in another state.

Mediation Services

If the divorce is amicable, or both parties are at least reasonably able to work through dividing assets and determining custody, it may be quicker and cheaper to go through mediation rather than hiring separate counsels and pursuing divorce litigation. Mediators are an unbiased party who considers the rights of both spouses in the divorce.

Length of a Same-Sex Divorce Case in Arizona

Factors that can impact the length of same-sex divorce proceedings in Arizona are the same as for a heterosexual marriage. It’s technically possible to receive a divorce decree in 61 days, but even for an uncontested divorce, it will almost certainly take longer—often up to twice as long. The 60-day waiting period begins when the divorce papers are served to the non-filing spouse. The non-filing spouse must file a response within the first 20 days after receiving the divorce papers.

The waiting period is meant to keep a couple from making a rash decision to terminate their marriage. The waiting period can be used to resolve conflicts and review what each side will agree upon before the divorce proceedings begin. This process is important, because anything the couple can’t agree upon, including custody and visitation arrangements for children, will be determined by the judge.

If the divorce is contested or custody of children is at stake, the divorce process may take months. High-value assets, multiple children, and very young children are likely to take multiple rounds of mediation or negotiation to solve. During this time, married couples of any persuasion are encouraged to seek free reconciliation counseling through the Family Court’s Conciliation Services to try to save the marriage. This service is available even after a divorce or annulment has been filed.

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Seek advice from an experienced Arizona divorce attorney. Specifically, secure an attorney with experience with same-sex marriage and divorce, as this experience is critical for unsnarling the complex legal matter of dissolving a common-law marriage.

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