Divorce & Family Law Protect Your Family & Your Assets

undefinedLGBT and Same-Sex Divorce Lawyers Serving Massachusetts

Massachusetts has always been a leader on same-sex marriage: Our state supreme court, in Goodridge v. Department of Public Health, decided that prohibiting gay marriage was unconstitutional back in 2004, a full decade before same-sex marriage was legalized nationwide. The Goodridge decision made Massachusetts one of only six locations worldwide to allow same-sex couples to marry, marking a huge victory for the strong LGBT communities in Boston, Provincetown and the rest of Massachusetts.

Of course, with the opportunity to marry has come the burden of divorce. Same-sex and LGBT couples have not been immune to the possibility of their marriage ending in divorce. What has become clear over the last decade, however, is that LGBT and same-sex couples sometimes face special challenges in divorce and child custody cases that are not present in “traditional” divorce cases. As we explain, below, LGBT family law cases involve several unique nuances that must be considered by LGBT clients and their attorneys.

We are a LGBT-friendly and gay-friendly law firm. If you and your spouse are considering a divorce, reach out to our divorce attorneys at Lynch & Owens in our main office in Hingham or in our Cape Cod office in East Sandwich. You can also contact us online.

Child Custody Cases Involving LGBT and Same-Sex Parents

The law is notorious for running several years behind societal developments. Same-sex marriage is no exception. One area where the legal field has struggled to keep up involves child custody cases for LGBT parents that rely on assisted reproductive technology (ART), such as artificial insemination, surrogacy and egg and sperm donorship.

Under Massachusetts and U.S. law, a biological parent of a child has a significant advantage in a child custody dispute. State law applies these same advantages to the parents adopted children, but courts have struggled to address parenting arrangements in which a child is the biological offspring, and the remaining parent did not complete the formal adoption process prior to the divorce. (The law similarly struggles with defining “biological children” when a LGBT donates sperm or an egg to a surrogate, or if the parent gives birth to a child that he or she is not genetically related to via a sperm or egg donor.)

To be clear, if both LGBT parents take all of the necessary steps to each appear on a child’s birth certificate as a biological or adoptive parent, each parent is likely to receive equal treatment under the law. In cases involving less perfect scenarios, however, the spouse with the superior parental status may have the upper hand in keeping custody of a child born during the marriage. Despite caring for the child since birth, the non-biological/adoptive parent may be treated like a stepparent, with few if any legal rights.

Thankfully, Massachusetts provides some remedies for LGBT individuals who are parents in every sense other than legal status. For example, the law increasingly recognizes the importance of de facto parents in a child’s life. In the case of Guardianship of K.N., the Supreme Judicial Court of Massachusetts decided that non-biological parents—like a stepparent, grandparent, or the non-biological parent in a same-sex marriage—could be granted visitation rights over the objection of the child’s biological or legal parents, if the relationship they have with the child is close enough that its loss would harm the child.

Under the Massachusetts guardianship statute, courts have also found granted legal custodial status to step-parents over biological parents when the step-parent is the clearly superior caretaker. While these developments under the law do not put non-biological/adoptive parents on even ground in a child custody dispute, attorneys are increasingly able to carve out parental rights for same-sex and LBGT parents who would have once been powerless to preserve a meaningful parent-child relationship.

Gender Biases and LGBT/Same-Sex Custody Cases

The complications facing same-sex parents are not limited to the biological/adopted labels. LBGT parents also face long-held stereotypes about gender and parenting that can play out in unpredictable ways in same-sex custody cases. It’s no secret, for example, that some Massachusetts Probate and Family Court judges are known as “father’s judges” while others are believed to favor mothers. In truth, most judges strive for impartiality in every custody case, but judges are human, and can be subject to deeply engrained biases that even the judge may not recognize in him or herself. It can be hard to predict how a “father’s judge” will react in a case when both parents are fathers, mothers or transgendered individuals.

Similarly, same-sex and LGBT couples often defy well-trodden custody concepts such as one parent being a “primary caregiver” while the other acts as the “primary wage earner”. For many couples, neither party occupies the clear role of caregiver vs. wage earner. However, in many other LGBT cases, each parent very much occupies a traditional role of child-rearing vs. income generation, even if the parents don’t match traditional gender stereotypes. In some cases, a skilled attorney may seek to portray a LGBT client in highly traditional terms, while in others, the attorney’s job is to educate the court on why a traditional view is inappropriate. How the attorneys proceeds is a function of the client’s goals.

It is important for attorneys representing LBGT and same-sex parents to recognize the unique challenges and opportunities that arise in child custody cases, and proactively address these issues with sensitivity, wisdom and strategic skill.

Dividing Marital Assets in a Same-Sex Divorce

One important difference between same-sex and “traditional” divorce is how courts may view which assets are “marital” and which are not.

Under Massachusetts law, all assets owned by both parties are considered “marital”, regardless of when the assets were acquired, and are therefore subject to marital division. As a practical matter, however, Massachusetts courts have long focused on when assets were acquired when determining how assets will be divided in a divorce. In many cases, a judge may view marital assets are that property which was acquired during the marriage. They might include positive assets—like a house, car, or retirement account—or negative assets like student loan debt. Courts are less likely to view assets acquired before the marriage as subject to division.

Fourteen years have passed since gay marriage was legalized in Massachusetts. With each passing year, fewer and fewer same-sex divorce cases in Massachusetts involve scenarios in which a court must determine how to divide premarital property that was acquired before same-sex marriage was legalized in Massachusetts. Of course, many same-sex couples who are seeking a divorce today were together prior to 2004, at a time when the law prohibited the spouses from getting married.

The problem is more acute for same-sex and LGBT couples who lived outside of Massachusetts – in states where gay marriage was illegal – prior to moving to the Commonwealth. For these couples, courts must determine who to treat premarital assets that were acquired by the parties while they cohabitated prior to moving to Massachusetts. This often requires a fact-specific analysis that centers on whether the parties would have gotten married in their former state had the option existed.

Before 2014, many same-sex couples across the United States were living together and acting as unofficial spouses long before they had the right to tie the knot and make their relationship official. If their prior state featured a civil union or a domestic partnership law, the asset division can become even murkier.

Many same-sex spouses have multiple starting points to their marriage. The date of the legal marriage is generally easy to determine, but the official marriage date can be tricky to pin down. If substantial assets were acquired by the parties before they were legally married, but this can become a significant complexity in a divorce proceeding.

Alimony for Same-Sex Couples

The issues surrounding asset division for same-sex couples are even more pronounced in alimony cases, where the duration of alimony payments is measured based on the length of the parties’ legal marriage. For same-sex and LGBT spouses who were prevented from marrying under the law, the durational limits for alimony based on the length of the legal marriage can seem deeply unfair.

The Massachusetts alimony statute includes an exception to the ordinary rule that limits alimony based on the length of the marriage. The statute, M.G.L.c. 208 s. 48, instructs courts to count the “…months from the date of legal marriage to the date of service of a complaint or petition for divorce” when calculating the duration of alimony. However, the statute also says that a court “the court may increase the length of the marriage if there is evidence that the parties’ economic marital partnership began during their cohabitation period prior to the marriage.

In short, the duration of alimony may be extended for spouses who cohabitated prior to being married. Same-sex and LBGT couples who cohabitated together prior to the legalization of same-sex marriage often have a particularly strong claim to extended alimony, but the argument is far from automatic. After all, many couples cohabitate before getting married, and the mere fact that spouses lived together before tying knot does not automatically extend the alimony duration period.

Attorneys representing same-sex and LGBT parties – including the party being asked to pay alimony – must understand the unique dynamics surrounding alimony and same-sex marriages, and craft arguments that effectively advocate the client’s unique needs. A “one size fits all” approach rarely works in such cases.

Same-Sex Divorces are Often High Net Worth Divorces

Compounding the complexity surrounding child custody, asset division and alimony is the fact that many same-sex LGBT couples feature two high-income individuals.

High net worth divorces are far from unique: They occur when both heterosexual marriages and LGBT marriages break down, and the spouses have substantial income and assets between them. However, the unique complexities surrounding same-sex divorce are often amplified in high net worth cases, where the additional wealth requires additional skillsets from the attorneys involved.

The truth is that both same-sex divorce cases and high net worth divorce cases require attorneys to possess unique skills, experience and resources. An attorney representing a LGBT client in a high net worth divorce must possess the skills required for all of the challenges arising from both class of cases.

Every Divorce is Complex

While same-sex divorces pose unique alimony concerns, asset division challenges, child custody challenges and the added complexity of high net worth clients, even the most seemingly straight-forward divorce can feature unforeseen complexity.

Just like in divorces involving heterosexual couples, LGBT and same-sex divorces can include the following areas of law:

Same-Sex Divorce Attorneys Serving Massachusetts

The family law and divorce attorneys at Lynch & Owens provide exceptional legal services to anyone who is considering a divorce, including LGBT and same-sex clients. The LGBT-friendly and gay-friendly divorce attorneys at Lynch & Owens provide exceptional legal services to LGBT and same-sex clients who are considering a divorce or family law representation. Our attorneys have experience representing spouses in the same-sex divorce process, protecting their rights and interests and ensuring they reach the resolution they need to live their best life in the future.

Call our law office at (781) 253-2049 for a free consultation or contact us online. Our divorce attorneys in Hingham and on Cape Cod can give you the help you need to make it through this challenging time.

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