Same-Sex Divorce

Same-Sex Divorce

Same-sex marriage is not considered legally different from a traditional marriage between husband and wife in Massachusetts and nor is same-sex divorce. For me, the divorce lawyer, I’m not sure I could care less about the sexual orientation of my clients. From my perspective, in and of itself, it has no relevance to the legal proceeding. The focus is and always will be the dissolution of the marriage of my client, advocating the best reasonable resolution. Candidly, I hesitate to put this page on the website because it, in a way, indicates I feel there is a material difference between same-sex and opposite-sex divorce. I decided to post the page because there is recent historical legal progress made on this front deserving reference and potential clients may want to ensure they understand my perspective as a divorce lawyer before scheduling a consultation.

Same Sex Divorce Law

Pursuant to the Supreme Judicial Court’s decision in Goodridge v. Department of Public Health, the definition of marriage in Massachusetts expanded to include same-sex unions after the Court held that limiting the validity marriage to heterosexual unions violates the Massachusetts Constitution. [1]

Furthermore, pursuant to the U.S. Supreme Court case of Obergefell v. Hodges (2015), states must recognize lawful same-sex marriages performed in other states, after the Court held that the right to marry is a fundamental right, and that same-sex couples may not be deprived of that right. [2]  This ruling by the highest court in our country effectively legalized same-sex marriage nationwide. By doing so, it also legalized same-sex divorce.

The Process for Same Sex Divorces (It’s no different than for opposite sex divorces)

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. A Complaint for divorce begins the process, which must be filed in the Probate and Family Court. A “no-fault” divorce might be filed based on the irretrievable breakdown of the marriage, either as an uncontested petition by both parties, or by one of the parties as a contested matter. A divorce in Massachusetts is also available based on fault grounds for adultery, gross and confirmed intoxication, desertion or non-support, cruel and abusive treatment, impotency, and confinement to a penal institution for a period of five years or longer.

The assignment of marital property and alimony matters are decided using the same standard in a same-sex marriage. The Massachusetts Probate and Family Courts use a process called equitable distribution to divide marital property in general. Here, the term “equitable” means “fair,” and not necessarily equal: the court will determine how best to divide marital property in the fairest manner in each particular case. There are many factors that the Court considers as part of this process, including the length of the marriage, the vocational skills and employability of the parties, the income and future earning capacity of the parties, and the liabilities, among many others.

Matters regarding the custody and support of children are decided using the same standard in a same-sex marriage. The Massachusetts Probate and Family Courts decide issues of custody by weighing what is in the best interests of the child. The “best interests of the child” standard considers many factors, including the primary caregiver, the needs of the child, the ability of the parties to care for the child, and sometimes, the preferences of the child, among many others. Child support is ordered based on the formula set out in the Massachusetts Child Support Guidelines.

Additional Same-Sex Divorce Resources:

The Trial Court Law Libraries have a useful compilation of relevant laws at http://www.mass.gov/courts/case-legal-res/law-lib/laws-by-subj/about/gaymarriage.html

You may also find GLAD’s Family Law webpage helpful at http://www.glad.org/rights/massachusetts/c/family-law-in-massachusetts/

If you have any questions about same-sex marriage and divorce, you may also schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.

 

[1] Goodridge v. Department of Public Health, 440 Mass. 309 (2003).

[2] Obergefell v. Hodges, 135 S. Ct. 2584 (2015).