The Challenges of Divorce in an LGBTQ+ Marriage

Marriage equality became law in the state of New Mexico in 2013, finally granting members of the LGBTQ+ community to legally marry and for their marriages to be recognized in the same way as a heterosexual couple. Once this law passed, it allowed LGBTQ+ couples the same legal rights in marriage that their heterosexual counterparts have enjoyed for countless years. When it comes to divorce, however, there are some challenges that are unique to the LGBTQ+ community. Let’s take a look at how you can address these unique challenges.

Unique Challenges

Because different states acknowledge LGBTQ+ marriage in different ways, there is a definite gray area pertaining to LGBTQ+ divorce. If one partner wanted to move to a state that didn’t recognize LGBTQ+ marriages the same way as their home state, it can cause significant confusion regarding the legal rights of that queer couple and their parental rights over their children, especially in the event of a separation or divorce.

The state of New Mexico has a community property approach to property acquired during marriage. Therefore, in a divorce, all marital property is generally split on a 50/50 basis. For queer couples who began their relationship prior to 2013, it’s likely that they opened joint bank accounts, made joint investments, or acquired property together with only one name listed due to the inability to declare a formal relationship in the past. Everything that was acquired by the couple jointly prior to marriage will likely, by existing New Mexico law, be determined to be the sole property of the person whose name is listed in the event of a divorce, which could significantly disadvantage the other party.

Likewise, any children who were born prior to 2013 will likely only have one parent listed on their birth certificate, even if they have been brought up jointly by both parents and both parents had, up until the point at which divorce proceedings began, practiced joint parental responsibility. This situation presents a different challenge. New Mexico parentage law has been decided and amended to remove the gender-specific requirements. While the statutes may still say “Father” or “Paternity”, the right to have one declared as a parent to a child applies regardless of gender identity or sex. In other words, New Mexico law protects LGBTQ+ couples who may have had a child prior to when marriage became legal so that both parents can be considered legal parents, regardless of whether they are listed on the child’s birth certificate of whether the child was born while married. However, for couples in this situation, their “paternity” will still need to be adjudicated. In other words, LGBTQ+ couples may have some extra steps to ensure the non-biological parent or unlisted parent be afforded the same rights as any other parent.

Ultimate custody determinations in terms of which parent is granted custody of the child(ren) will follow the same trajectory in New Mexico courts as any other non-LGBTQ+ couple. That is, custody will be decided based on the court’s determination regarding what is in the best interests of the child(ren). That determination is highly fact-specific and can ultimately boil down to which parent is best placed to provide that child with the greatest quality of life. The Court will determine any applicable child support payments to be made by the other parent and support the enforcement of visitation schedules and custody arrangements.

Prenuptial Agreements: Your Essential Protection

A prenuptial agreement, also known as a prenup, is often seen as something that is only important in situations where one party has considerably greater wealth upon entering the marriage than the person they are marrying. However, a prenuptial agreement is a sensible decision for any couple who is looking to tie the knot. It’s especially valuable for a LGBTQ+ couple with an established relationship who wishes to formalize their ownership of jointly acquired assets prior to their wedding day.

By legally assigning joint and individual ownership to assets, investments, property, wealth, debt and children prior to marriage in a prenup, the legal status of each element is formally recorded. In the event of a divorce, the determinations of the agreement can take precedence over New Mexico law to allow for a simpler, fairer outcome for individuals and any dependents. A prenup ensures that any attempt to dodge the legal process will be invalid and that each party will receive their rightful allocation when they exit the marriage. It can also help ensure that children will be appropriately cared for in terms of custody, child support and the like.

Legal Support is Available

While it may feel unromantic to consider the implications of a divorce prior just before you walk down the aisle, this may be the best time to have the hard conversations. No one can predict the future, so collaborating with your partner to agree on what property should be considered “community” and what would be a fair outcome in the event of a separation can save you from irrational and unpredictable responses later down the road. 

There are a variety of legal issues queer couples must consider that heterosexual couples never experience, making a prenuptial agreement drafted or reviewed by a legal professional all that more essential. At the Law Office of Dorene A. Kuffer, our attorneys have an intimate understanding of LGBTQ+ marriage law, and will do everything in their power to ensure that the legal position of both parties is correctly recorded prior to marriage. This way, both you and your partner–and any future children–will be safeguarded should a separation be in the cards in your future. Contact us today to learn more.