Massachusetts generally recognizes marriages and divorces between LGBTQ-identified persons, but the issues that may occur for LGBTQ-identified people are as unique and nuanced as people themselves.
Note that there is not a separate or different process for separation and divorce for same-sex couples. In the case of all marriages, whether same-sex or heterosexual, the process for separation and divorce is the same in Massachusetts. The assignment of marital property and alimony matters are decided using the same standard whether it’s a hetero or same-sex marriage, through a process called equitable distribution. Matters regarding the custody and support of children are decided using the same standard in a same-sex marriage as well, by weighing what is in the best interests of the child.
Still, specific family law issues may arise for LGBTQ-identified persons. A skilled Massachusetts family law lawyer can help you to navigate the complexity of these issues. As some examples, take the following fact patterns:
Example 1: Henry and Sue
Henry and Sue are a cisgender and straight couple. This means that Henry and Sue identify with their born and identified sex. After a four-year marriage, Sue decides that she wants to date a woman. Henry wants a divorce. Are there any different considerations that Henry needs to know?
Example 2: Josh and Ben
Josh and Ben met in college. After dating for two years, they decided to live together. At the time, they could not get married in Massachusetts but lived together in Massachusetts, had a ceremony with their families to proclaim their commitment to each other, and held themselves out in public as a partnered and committed couple. Eventually, the Commonwealth of Massachusetts recognized equal marriage. Josh and Ben wonder: are they legally married? If so, when are they considered to have been married? Is their marriage date the date that they had a commitment ceremony? Do they need to have a formal marriage or wedding ceremony? Suppose that they divorce one day in the future—what is the date that a court would use for purposes of alimony?
Example 3: Sandra and Daryl
Sandra and Daryl have young twins, Sarah and Frank. One day, Sandra, a stay-at-home mom, sees her son Frank in one of Sarah’s outfits. Shocked, but still in support of her child, she begins to take Frank to receive mental help support. They eventually diagnose Frank with Gender Dysphoria under the DSM-V. Sandra decides that she wants to support Frank now as Frankie. Sandra wants her child to publicly identify as s/he wishes. Eventually, Daryl learns of this and is outraged. Daryl wants to force Sandra to stop “encouraging” their child to be who they are. Does either party have any legal recourse or ways to protect their transgender kid?
Example 4: Betty and Joanie
Betty and Joanie identify as a lesbian married couple, married and living in Massachusetts. After 6 years of marriage, Betty travels to California for business. After drinking too much and contrary to her better and usual judgment, Betty has an affair with a bisexual man. Unbeknownst to Betty, she becomes pregnant. She tells Joanie about the incident and, upon learning that she is pregnant, decides to keep the child. The couple decides to keep and raise the child together. They track down the man from California to tell him that they are pregnant and to offer to him the chance to meet the child one day. He is upset and wants full custody. Who has the legal right to custody of the child?
Example 5: Jackie and Margaret
Jackie and Margaret married in Massachusetts, but now want to divorce. After they divorce, Jackie decides to return to the in vitro clinic to try to become pregnant with the embryo that both parties created together during the course of the marriage. May Jackie use the embryos? May Jackie use them regardless of whether they contain Jackie’s or Margaret’s specimens?
Considerations:
While there will likely not be a big different for Henry’s divorce above, there are significant considerations that the other couples must consider.
For example, Josh and Ben may not be considered to be legally married, especially if they were not really holding themselves out as married. Daryl may make his arguments against supporting his transgender child, but a Massachusetts judge would look to the best interests for Frankie and likely side with Sandra and Frankie. Betty and Joanie would likely be the legal parents of the child because a child born within a marriage is presumed to be the child of the two people in the marriage. The man with whom Betty had the affair may have a paternity burden to overcome, and would need to show that it is in the best interest of the child for him to have custody. Jackie and Margaret’s arrangement for the embryos would likely take precedent, but a mediator might be able to help the former couple to navigate this issue.
Are you looking for an experienced Newburyport or Andover divorce lawyer or family law attorney? If you have an issue related to LGBTQ issues, or general family law, you should contact a competent domestic relations lawyer or family law attorney who appreciates the diversity and value of all families. Our experienced professionals may be able to work on behalf of you or your family. Please contact our offices at your earliest convenience by phone at 978-225-9030 or complete a contact form on our website. We will return your inquiry with prompt attention.