LGBTQIA+ Rights

LGBTQIA+ Rights

The right to marry means LGBTQIA+ couples also have rights enjoyed by other married couples, like state and federal benefits and inheritance rights. They also have the right to divorce. Navigating a same-sex divorce in Pennsylvania does not have to be any more complex than a traditional divorce, but there are some considerations you should keep in mind.

At Raver Rawlings & Parker PLLC, our lawyers want your divorce to go as smoothly as possible. Our lawyers are here to represent your interests and inform you of your rights so that you make the best decisions for you and your family. 

Prior to 2013, gays and lesbians were only legally allowed to marry in select states. In other states, they were allowed to live and benefit from domestic partnerships. It was the U.S. Supreme Court decision in United States v. Windsor (2013) that first granted same-sex spouses federal recognition of their marriages and declared that the federal government could not discriminate against married lesbian and gay couples when determining federal benefits and protections. This decision was followed by another U.S. Supreme Court case, Obergefell v. Hodges (2015), which ultimately paved the way for legalized gay and lesbian marriages throughout the United States. 

With marriages, however, come divorces. LGBTQIA+ couples divorce like any other married couple. Finances tend to be a fundamental reason for divorce among gay and lesbian couples as it is with heterosexual couples. There are, however, other issues that LGBTQIA+ married couples face that heterosexual couples do not face. LGBTQIA+ persons face discrimination. Two major stressors are discrimination in the workplace and among unaccepting family members. These stresses can negatively impact an LGBTQIA+ marriage. 

Today, gay and lesbian married couples are treated the same under the legal system when it comes to marriage and divorce. They do, however, face unique challenges when it comes to things like alimony, property division, and children.

Grounds for the Dissolution of a Same-Sex Marriage in Pennsylvania

There are different grounds for obtaining a divorce. Some of the grounds are fault-based and include adultery, cruelty, and abandonment. Fault-based divorces, however, are rarely used today except in rare cases where it may benefit the petitioner.

All states now allow no-fault divorces, which means the married couple has “irreconcilable differences” or the marriage is “irretrievably broken”. You do not have to have a specific reason for the divorce and, as such, do not have to prove anything. With the latter said, however, no-fault divorces can still be contentious. 

Most same-sex couples use no-fault as the basis for divorce, which is also true for divorcing heterosexual couples. 

Can a LGBTQIA+ Spouse Ask for Alimony?

A same-sex spouse can, in the event of a divorce, seek alimony from the other spouse. Throughout the United States, state laws treat gay and lesbian marriages the same as traditional marriages: they share the same benefits any married couple enjoys, and they share the same rights during a divorce. The latter means that yes, a same-sex spouse can request alimony. 

How Is Property Separated in an LGBTQ Divorce?

There is one important factor to consider: LGBTQIA+ marriages are relatively new. Many same-sex married couples today have lived as though they were married decades prior to lawfully marrying. When property and debt are divided, however, some jurisdictions will not take into consideration those years but may only treat the couple as being together for the specific years of marriage. 

This factor can fundamentally and, to at least one of the parties, detrimentally impact the division of assets and debt. So, if you have shared property and debt for 30 years but have only been lawfully married for 10 years, the courts might only consider the 10 years. That is just as important in terms of benefits, like pensions, as it is with any debt. Matters like this make it critical to speak to an attorney. You always want to make sure in any divorce that your rights and interests are upheld. 

Children of a Same-Sex Divorce

When children are involved in your divorce, you want to speak to an attorney to make sure you know what the law is, what to expect, and how to go about securing your interests and the best interests of your child. 

Biological Parent vs. Non-Biological Parent

Is the child the biological offspring of one of the same-sex parents? In those instances, a court may only award custody to the biological parent.  In other cases, the court may hold that the non-biological parent has custody rights of the child.  

One way to prevent this issue from being a factor in same-sex custody cases is to have the non-biological parent adopt the child. Then, that parent will have the same legal rights to the child as the biological parent. This is also true when neither spouse is the biological parent of the child. 

As long as both partners adopt the child or one spouse adopts while the other spouse is the biological parent, they will both share legal rights to the child. Then, when the parties divorce, if they are not able to agree on a parenting plan, a judge may use the same criteria as is used in determining child custody and child support.

Contact an LGBTQIA+ Divorce Attorney in Pennsylvania Today

At Raver Rawlings & Parker PLLC we make sure your rights are upheld and your interests are protected when you undergo a same-sex divorce or custody matter. Though you are granted the same rights as any other couple separating, your unique situation or circumstances may play a role in things like property division and parenting time. Get the best representation for yourself and your loved ones, contact us today!