Gay divorce in Massachusetts: In-state equality, out-of-state challenges

October 11 marked the 26th annual National Coming Out Day, and it served as a powerful reminder of the unique challenges faced by homosexual individuals and same-sex couples. A national holiday dedicated to the poignant symbol of gay and lesbian individuals standing proud and telling the world they are not ashamed of who they are marks our progress as a society, but also highlights the ongoing struggle for true equality.

Massachusetts has a long history of being a leader when it comes to acceptance and tolerance. In 2004, Massachusetts became the first state to legalize same-sex marriage. In the nearly ten years that have elapsed since the first American same-sex wedding ceremony, thousands of same-sex couples have tied the knot in Massachusetts and other states that have also embraced gay marriage.

In Massachusetts, same-sex marriages are on equal footing with heterosexual marriages. And, just like straight couples, same-sex partners can grow apart. For the most part, same-sex divorce is the same as a divorce involving a heterosexual couple. But, there are a few special factors to take into account.

Property division, alimony, child custody the same for gay or straight couples within Massachusetts

Division of marital property; a determination of whether or not alimony should be awarded; child custody arrangements; these keystones of divorce are handled in the same way when a same-sex marriage ends as when a heterosexual couple calls it quits. In most same-sex divorces, negotiation strategies can help the parties stay out of court and resolve matters in a favorable fashion. For example, since alimony payments are tax deductible for the payer and taxable income for the recipient, the financial circumstances of the parties may make alimony a good solution to an impasse in property division negotiations.

Of course, if a settlement cannot be reached, a divorcing same-sex couple can litigate matters before a Massachusetts court.

But where do the challenges a same-sex couple faces in divorce deviate from those shouldered by their heterosexual counterparts? Most commonly, issues arise when one or both of the partners relocate to a jurisdiction that does not recognize same-sex marriage.

Imagine a child is born into a same-sex marriage in Massachusetts. The child is the biological offspring of one of the partners but not the other. Under Massachusetts law, the marital relationship automatically confers parental rights to the nonbiological parent. If the couple later divorces in Massachusetts, each former spouse will have custody and visitation rights that are fully enforceable within the state.

However, let's say that some time after the divorce, the biological parent moves to Texas, where same-sex marriage is not recognized. As far as Texas is concerned, the marriage never existed. Any attempt by the nonbiological parent to enforce custody or visitation rights would be promptly stonewalled.

Overcome barriers of inequality with help from a family law attorney

While divorcing same-sex couples face unique challenges, a skilled Massachusetts family law attorney can help come up with creative legal solutions. In the above scenario, for instance, a second parent adoption for the nonbiological parent could protect custody and visitation rights even in states that do not recognize same-sex marriage.

If your marriage is headed toward divorce, or even if you are completely happy in your relationship but want to put safeguards in place for any eventuality, talk to an experienced Massachusetts family law attorney. Laws concerning same-sex marriage may be in a constant state of flux, but even in an uncertain environment, you can give your family stability through thorough, prudent legal planning.