I was working today on one of my focus websites (yes, your divorce lawyer is working on Sunday, those Monday morning cases won’t prep themselves), www.contestedivorcelawyernashville.com, writing a new page to address the new legal issue of same-sex divorce and realized this is truly a new and unique area of family law. Many attorneys have publicly stated that a same-sex divorce is going to be the same as a hetero-relationship divorce, but will it really? Perhaps over time now that same-sex marriage is legal it will eventually be the exact same process, but right now? No way.
So many same-sex couples spent years living together in legal domestic partnerships or just combining everything without any special legal determination because marriage wasn’t an option. Usually, if you live together but you aren’t married it’s buyer beware and if your spouse bought Fido instead of you, you could kiss your dog goodbye as pre-marital property. But what if you weren’t allowed to marry — would your pre-marital property get special treatment kind of like commonlaw marriage did back in the day? We draw a strong line between pre and post-marital property because until June 26th, the married couple would have had every opportunity to marry and contractually link the property in joint-ownership any time they wanted, so the express decision not to gave a lot of protection. Should we do the same with same-sex couples? What if the parties co-habitated for 20 years prior to the Supreme Court Ruling in Obergefell, if they were married for only 3 years prior to divorce, should they be entitled to long-term alimony? What if they lived in a state prior to moving to Tennessee that recognized common law marriage?
Things may get even stickier with pre-marital contractual arrangements. Should pre-marital property protection contracts be construed as pre-nuptial agreements and therefore necessitate the same requirements to be upheld in family court? What if there was a surrogacy contract that produced a child but only had one party named as the adoptive parent, should that control? Or even more complicated, if the parties both paid for the surrogacy jointly did the marriage then “legitimize” the child such that both are legal parents without the need for a legal adoption or other legal status from a Court?
I have to stop myself before I go so far down the rabbit hole I don’t come back, but same-sex divorce is going to be very different from divorce for their heterosexual counterparts over the next ten years. It is a very interesting time to be a divorce lawyer, and while it will be taxing and very trying, it will be very rewarding to be able to use intellect and creative thinking at such a high level in upcoming same-sex divorce cases.
Attorney Morgan Smith, July 12 2015 Nashville, Tennessee All Rights Reserved
(TN law requires we tell you this is not legal advice)