Same Sex Divorce in Phoenix

Need Arizona divorce representation in dissolving your same sex marriage? A divorce attorney with Stewart Law Group can help. Although there may be ancillary family law issues to resolve as discussed below, availability of divorce presumes the parties have a valid marriage. Having established Arizona’s jurisdiction over parties and subject matter in the petition for dissolution of marriage, a married individual has the right to obtain a divorce. Take a closer look.

Is Anything Different About Same Sex Divorce?

LGBTQ Family Lawyer in PhoenixWe understand your desire for answers and information. It’s perfectly natural to have concerns about the divorce process in Arizona. In terms of each party’s marital and parental rights, the Superior Court proceedings and the emotional aspects of family law cases, there is nothing different about same sex divorce. All divorcing spouses may experience legal complications. But there is no separate path through the courts; and no special proofs required to show a same sex marriage is legitimate.

That is not to say, however, that same sex spouses will never experience obstacles. We strongly recommend obtaining legal representation before negotiating or mediating a divorce separation agreement with terms dictating division of assets, provision of spousal maintenance, child custody and additional child support, along with other important family matters.

Collaborative divorce mediation is another option for same sex spouses. Especially those who strongly desire to keep their personal lives as private as possible. Without having to air any dirty laundry in the courtroom.

Have You Considered Marriage Counseling?

We know it’s not always possible for couples to attend counseling together. We know spouses do not always reconcile their differences. Having said that, we do hope spouses will consider meeting with their spiritual advisor or attending a few sessions with a professional counselor. It has been our experience that both marriage counseling and divorce counseling are almost always beneficial for the relationship (especially if there are children) and for the spouses as individuals looking to start a new life. That holds true even when divorce is unavoidable.

A marriage counselor facilitates communication between spouses. Failed communication is a source of conflict for most marriages in distress. (“She just doesn’t listen to me.” or “He nods, but never says what he thinks.”) Without placing blame on either, the counselor encourages the spouses to see what is right about their relationship along with what may be causing problems. Not every counseling session results in epiphany or reconciliation, of course. But talking about the relationship with someone who is non-judgmental, who is there to help, can ease tensions in the marriage and reduce conflict going into divorce. Marriage counseling can also help a spouse confirm in his or her own mind that divorce really is the only path forward.

A Brief History of Same Sex Marriage in Arizona

  • 1975 – Legislation defined marriage as a union between a man and woman.
  • 1996 – Legislation eliminated same sex marriage in Arizona and disallowed recognition of same sex marriages entered into in other jurisdictions.
  • 2008 – By substantial margin, Arizona voters passed an amendment to the state constitution defining marriage as between one man and one woman.
  • 2014 – The U.S. Court of Appeals for the Ninth Circuit (which includes Arizona) held that state bans on gay marriage amounted to gender discrimination by denying same sex couples equal protection of the law under the 14th Amendment.
  • 2015 – the right to same sex marriage became the law of the land.

Fundamental Right to Marry

The right of same sex couples to marry became law in all 50 states with the landmark civil rights decision: Obergefell v. Hodges, 135 SCt 2584 (2015). In 2015, the U.S. Supreme Court held the fundamental right to marry someone of the same sex was guaranteed by the 14th Amendment of the U.S. Constitution. More specifically, that fundamental right is embedded in the Due Process Clause and Equal Protection Clause. The constitutionally guaranteed right to marry is sufficiently broad to encompass same-sex marriage as well as opposite-sex marriage.

Obergefell overturned Baker v. Nelson, 291 Minn. 310, 191 NW2d 185 (1971). Baker allowed a state to limit marriage to opposite-sex couples only. For decades, Baker provided legal authority for states to ban gay marriage. On the day Obergefell was decided, there were still 13 states prohibiting same-sex marriage.

Fundamental Right to Same Sex Marriage & Divorce

Whether a couple is of the same sex or opposite sex, the fundamental right to marry applies equally. So long as the marriage is entered consensually and does not violate some other law, no state can prohibit marriage between either of those groups of people and must issue marriage licenses. (Bigamy or duress, for example, may invalidate a marriage. Read our discussion on annulment of marriage in Arizona).

Laws change and are subject to interpretation. Because the fundamental right to same sex marriage (and same sex divorce) was decided only a few years ago, cases attempting to interpret and apply Obergefell and other appellate court decisions continue to wind their way through the court system. For those contemplating divorce, many aspects of this non-traditional area of family law are still developing.

If you are in an LGBTQ marriage, then consult an attorney with substantial divorce litigation experience about the current status of same sex laws affecting marriage, divorce and parental rights.

Years of Cohabitation Before Marriage

Many lesbian and gay couples cohabited in committed relationships long before they were able to lawfully marry in Arizona or elsewhere. That mutual commitment – sometimes involving adoption of a child, surrogate mother, or sperm donor – is not something to disregard simply because the marriage certificate was issued at a time when Arizona law prohibited same sex marriage.

Here’s the rub. Divorce law draws a line between pre-marital status and post-marital status. For example, wages are separate property before marriage, but are community property after marriage. Relying on their attorneys for legal guidance, the spouses would be prudent to give their best efforts in settling as many issues as they can. A separation agreement of the spouses own creation provides a known outcome that both can live with. That agreement may be far more acceptable to them than the outcome of a trial. A divorce attorney with Stewart Law Group would likely offer this advice: Agree to settle as many issues as possible, then litigate any outstanding meritorious issues. There is something to be said about choosing your battles.

Spousal Support in Same Sex Divorce

Consider an award of spousal maintenance after a 10-year marriage, but in a devoted union that lasted 15 years. Assume that, during the marriage and prior cohabitation, the economically dependent spouse – as homemaker and primary caretaker of their minor child – was financially supported by the other spouse.

When spousal maintenance factors are considered, including duration of marriage, those five years of cohabitation preceding the marriage become significant. Alternatively, if there was an implied contract by the parties wherein one would support the other in the event of separation, then that may be enforceable as a contractual matter, but not as alimony. See Carroll v. Lee, 148 Ariz. 10, 712 P2d 923 (1986). Arizona statutory law does not recognize palimony compensation per se between unmarried individuals. But it may be possible for a judge to order financial support following the parties’ separation, depending upon the circumstances. Talk to an attorney.

During negotiations, the spouses could agree that spousal support calculations should include the entire 15 years they were together. Or they may decide that a fair number is 12.5 years or some other arrangement. The point being, with their attorneys’ assistance they have an opportunity to arrive at their own conclusions and reach their own agreements. In the absence of agreement, the judge will look to ARS § 25-319 with both parties presenting evidence on the maintenance factors. The court weighs the evidence before ruling on how much spousal support, if any, for how long, and under what conditions it will terminate (upon cohabitation or remarriage, for instance).

Divorce Settlements for Same Sex Couples

Our attorneys have a reputation for excellence in negotiating divorce settlement agreements for their clients. With an agreement, the outcome is certain. Without an agreement, the outcome depends upon the judge’s rulings. If either party objects to a final judgment, then a timely appeal may follow. An appeal is not a new trial. Furthermore, the divorce appeals process could take years for the Arizona Court of Appeals to render a final decision.

We understand that complete settlement is not always possible. That impasse or stalemate could derail further discussion on some hot-button issue (for example, over sole or joint legal decision-making authority in the parenting plan). Should negotiations prove unfruitful, the Stewart Law Group attorney representing that client will protect his or her rights by aggressively litigating the case at trial.

Division of Assets in Same Sex Divorce

The U.S. Supreme Court acknowledged the legality of same sex marriages in 2015. But what about the couple who lived together in a committed relationship before 2015 in a state that did not recognize same sex marriage? How should property be divided?

If acquired before marriage, assets and debts are a spouse’s separate property. That is, absent commingling or transmutation during the marriage wherein a separate asset is transformed into a marital asset or gifted to the other spouse. Only community property is divided in divorce. This makes the question “When did the marriage begin?” an important one for gay or lesbian spouses.

The spouses cohabitation may have occurred years before they legally married or before their marriage was recognized as lawful and enforceable in Arizona. In addressing this reality and coming up with a fair and equitable resolution, the act of mediating spousal maintenance, division of assets and debts and other issues could be most productive when done in conjunction with settlement negotiations.

Consider the division of retirement assets. The spouses may have declared their union a decade or more before they were actually married in a jurisdiction that allowed same sex marriage. Numerous issues can be mediated, including legal decision-making and parenting time of a child.

The family law judge has substantial discretion over determinations involving property and spousal support in divorce. With child custody, the court will determine what is in the best interests of the child – the deciding factor on whether a proposed parenting plan will be adopted.

Child Custody and Parenting Time for Same Sex Parents

Ordinarily, if a child is born out of wedlock, then paternity establishment is the next step, followed by a parenting plan for legal decision-making and a parenting time. With a same sex couple raising a child, only one party has enforceable parental rights if the other party did not legally adopt the child as his or her own. (Neither informal adoption nor fostering a child is sufficient basis for asserting parental rights, although a case could be made for third party visitation.)

The other party may petition for third party visitation under ARS §25-402, and we can help with that, too. But that’s a different case with a different legal strategy and a different potential outcome. Be mindful that in all child custody cases, the common thread is doing what is in the best interests of the child.

Same Sex Marriage and Adoption

In an healthy marriage where both spouses desire children, adoption is a possibility. Unless a spouse is the biological parent, adoption is the only way for him or her to obtain parental rights. An adoption attorney with Stewart Law Group can assist with the legal adoption process under Arizona law.

Before you go, there’s one more thing we need to talk about.

Domestic Violence and Orders of Protection

Domestic violence, including spousal abuse, child abuse and intimate partner abuse, is no less a problem in LGTBQ relationships as it is for heterosexual couples. If you are in a threatening situation, get safe and get help. Call 911 for the police if you are in immediate danger. Once you and your children are safe, obtain an order of protection to keep the abuser away.

Have you been falsely accused of domestic abuse? Unfortunately, sometimes a party creates a false narrative claiming the other spouse is an abuser simply to gain the upper hand in divorce or child custody proceedings. This false reporting of child abuse or neglect will backfire. And when it comes to light, which it will, the false accuser will be dealt with harshly by the judge. But falsehoods must be countered with facts so the falsely-accused party’s marital and parental rights are not negatively impacted.

Consult a Phoenix Same Sex Divorce Attorney

There is so much to think about when choosing an attorney to represent you in a divorce, legal separation, or a dispute over custody. It’s what we do here at Stewart Law Group, and do well. To meet with an experienced divorce attorney, call 602-548-3400. Do you need more information or have a question? Feel free to email info@arizonalawgroup.com. Try not to worry, we’ll get back with you right away.