Divorce matters are often stressful and trying times for a family that is undergoing radical changes. This is no different for the individuals in a same-sex marriage who seek to get divorced. However, spouses in a same-sex marriage may face certain hurdles or unique circumstances given that nationwide same-sex marriage was only recognized more recently via the United States Supreme Court’s holding in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). This blog explores some of the unique specific issues that a same-sex couple may face when getting divorced.
Property Division. Indiana subscribes, under the Dissolution Act, to the “one pot” theory where all assets (and liabilities) brought into the marriage or acquired during the marriage up to the date of filing of a petition for dissolution of a marriage are assets of the marriage the court can divide. However, since the Obergefell decision came down relatively recently, there are still several issues that a spouse in a same-sex marriage may face that are not paralleled in a heterosexual marriage.
An example for illustrative purposes: It may help to understand the following concepts if we set up a hypothetical example. Let’s assume we have a heterosexual couple (A (female) and B(male)) and a same-sex couple (C and D). Both couples begin seeing each other at the same time, and both commit to loving and supporting each other in 2005. The only difference is that A and B get married, and C and D do not because it was not allowed at the time. C and D then get married in 2015.
Deviation from a 50-50 split. In addition to the “one pot” theory which Indiana applies in a divorce, there is also a strong presumption that spouses getting divorced essentially get an equal portion of the net value of the marital estate. Often, parties in a divorce may try to get a court to deviate from this 50-50 split through various arguments. One of those arguments may be that one of the spouses came into the marriage with far more than the other, and thus, the “wealthy” spouse should get a larger portion of the marital assets because he or she came in with more, and it would be unfair to “give” the other spouse a windfall simply because the two got married. Here’s where our example comes in. Suppose A and C in our hypothetical couples each make $1,000,000 on a lucrative investment in 2010. A would likely have a difficult time in a divorce proceeding arguing that she should get more of the marital estate because of the investment because the money was earned during the marriage. C, on the other hand, may argue that he or she should get a larger portion of the marital estate because he or she earned the money before the 2015 marriage. So, the couples differ in that D may be at a greater disadvantage than B is in a divorce simply because D could not marry C earlier than 2015. In sum, it is not quite clear whether a court would treat C and D as a couple that has been together since 2005 or since 2015. This “timing” issue could apply to a variety of circumstances, such as dissipation of assets or the valuation of assets and/or liabilities.
Custody, Parenting Time, and Support. Under Indiana law, there is a presumption that if a child is born by a mother, then her husband is the father of the child. Increasingly common, whether in same-sex marriages or otherwise, are instances where children are adopted or conceived via surrogacy through IVF or otherwise. There is even the possibility in a same-sex female couple that one partner’s egg be fertilized via IVF and then have that embryo transferred to the other partner’s womb to carry the child to term. Other times, a same-sex male couple may have one spouse’s donated sperm fertilize an egg creating an embryo that is then carried to term by a surrogate. Regardless of the permutations that one may think of as to how a same-sex couple may grow their family and raise their children, it is important to know that precautions must be taken to protect each parent’s rights and to realize that the law has maybe not caught up with the commonality of these methods to either conceive or raise children. Thus, it is important to know the ramifications of the path that same-sex spouses take to become parents. For example, in the example cited above regarding the same-sex female couple using one partner’s egg with the other partner carrying the child to term, it may beg the question who actually is the biological mother in the court’s eyes? Also, upon divorce, some parents may find that their parental rights are not what they believed them to be. If one parent in a same-sex marriage adopts a child or is a biological parent while the other does not/is not, the latter parent may, in fact, find themselves at a disadvantage when issues of legal custody, physical custody, and parenting time come into play in a divorce. In fact, that spouse may find out that the law does not recognize them as a parent at all.
Other Issues: A variety of other issues may arise that are unique to same-sex couples in a divorce or other legal matter. For example, if a same-sex couple first entered into a civil union in one of the state’s that recognized them1 and then got married, the couple may not only have to get divorced but may also have to dissolve the civil union. This may invoke filing documents in various jurisdictions to achieve this end and possibly may incorporate a jurisdictional challenge from one spouse or may invoke the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJA”).
Each of these situations creates an added layer of complexity in resolving the divorce, whether the multi-jurisdictional element concerns the custody of children of the marriage or concerns property division. In these situations, it is particularly important to have legal counsel familiar with the issues that arise in same-sex divorces. We hope you find this blog post useful in providing information about Indiana divorces involving same-sex spouses. Dixon & Moseley, P.C. advocates handle complex divorce cases throughout Indiana. This blog post is written as general information and is not legal advice or a solicitation for services. It is an advertisement.