Although LGBTQ+ couples are subject to the same laws as heterosexual partners, same-sex spouses face different challenges in marriage and in divorce. As gay marriage is only a recent legal right, gay divorces are also new to the court system, so most laws and judges might not be up to date on the unique dynamics of same-sex couples.
Child custody disputes differ
Heteronormative divorce principles might not cater to the dynamics of same-sex families. For example, a court may assume that the biological mother in a lesbian relationship is more of a mother (even if her wife shared childcare equally) and be more likely to grant custody to her.
Additionally, depending on the state, the legal parentage of the non-biological parent might not automatically work in his or her favor. Sometimes adoption and other legal doctrines are the only ways for a parent to protect his or her rights. Same-sex couples often do not automatically fall under the “marital presumption” doctrine which states that when a mother gives birth, her spouse is also presumed to be the parent.
Challenges transgender people experience in divorce
Transgender individuals already deal with a lot of discrimination and societal stigma because of their identities, and this can also extend to their relationships. A cisgender partner may view their spouse’s coming out as an insurmountable issue in the marriage or as a threat to their own identity. As such, the spouse may file for divorce and try to keep the transgender parent from seeing their child, leading to contentious custody disputes.
Overall, consulting with an experienced LGBTQ divorce attorney may give you the best chance of protecting your legal rights as you divorce your spouse.