Same-sex marriages have been legal throughout the United States since 2015. By extension, the right of same-sex couples to divorce has been the law of the land since then, too. Just because same-sex couples in Missouri can divorce does not mean the process of doing so is free from potential issues.
Some judges in Missouri may still struggle with applying divorce laws to same-sex couples even though it has been nearly ten years since Obergefell v. Hodges. Here are just a few of the challenges divorcing same-sex couples may want to anticipate.
Reminder: Only One Set of Laws for All Couples
Before discussing the divorce-related issues same-sex couples may encounter, it is worth remembering that there is only one set of divorce statutes in Missouri. No state has divorce laws that apply to opposite-sex couples and another that only applies to same-sex couples.
This means that a same-sex couple looking to divorce must meet the same eligibility and residency requirements as any other couple. Their divorce will follow the same timeline and procedure, and courts will address the same issues in their divorce orders as they would for other divorcing couples.
Two Challenges for Same-Sex Couples
This does not mean that a same-sex divorce will look exactly like an opposite-sex divorce. Same-sex couples who divorce can encounter unique challenges when it comes to property division and child-related matters:
Asset Division
Missouri courts divide marital assets fairly and equitably. These assets include most property that either spouse acquired during the marriage.
However, because same-sex marriage was not recognized until 2015, some courts may struggle with whether to recognize property acquired by the couple prior to 2015. This can lead some judges to enter property division orders that do not reflect the full value of the marital estate.
Some benefits require parties to be married for a certain length of time before the other spouse develops a vested interest in that benefit. If the law didn’t consider the couple legally married until 2015, some same-sex spouses may have trouble having their interests recognized despite having been with their spouse for the requisite time.
Parentage Presumptions
Similarly, same-sex couples who welcomed a child into their relationship before 2015 may have trouble obtaining parenting rights during the divorce. Without a finding of parentage, a person does not acquire any legal right to visitation with the child or to participate in its upbringing.
Missouri law presumes that a person is the legal parent of a child if they were married to their child’s other parent at the time of birth. The lack of recognition for same-sex couples until 2015 means that they might need to resort to other means to acquire parenting rights.
Navigating Challenges With Legal Help
Same-sex couples should strongly consider using the services of an experienced divorce lawyer when terminating their marriage.
The orders a court enters during divorce proceedings can have significant repercussions on your legal rights. Having a skillful attorney by your side can ensure the court has the legal principles it needs to enter the correct orders.