Happily, these days the laws concerning marriage, divorce, legal separation and parenting no longer vary if the couple is same sex or not. By constitutional law, all 50 states must allow same-sex couples to marry.
Where there is marriage, there is bound to be separation and divorce. There are two ways for couples to separate: (1) they are married and separate officially through the courts (usually, but not always, as a step toward divorce); (2) they are unmarried and want to separate.
What Should I Do if My Same Sex Partner and I Separate?
Married Couple Separation: If the couple is married, they can file a proceeding in court to obtain a legal separation. The process is much similar to the process for obtaining a divorce: one party files a “complaint” and serves it upon the other party, and that party answers the complaint. Normally, what happens next is that they jointly draft a legal separation agreement to submit to the court.
The agreement will set forth division of the assets and debt, and their agreed-upon rules concerning co-parenting. This includes where the child will live and with whom, what the parents’ visitation rights are, and who pays child support. Preferably the couple agrees on the parenting rules. If so, they will draft their own separation agreement and it will set forth the couple’s preferences on these issues. If they cannot agree, the judge will decide. When it comes to the children, the judge has one guiding principle: what will be in the best interests of the child?
Unmarried Couple Separation: If the couple is not married, there are two basic possibilities: (1) co-parent without any written agreement; or (2) write a written agreement where their expectations for co-parenting are spelled out. This agreement is essentially the same type of document that married couples would draft and submit to the judge.
The benefit of having a separation agreement is that it records everything in writing. This can minimize the risk of future conflict, and lessen the likelihood that there will have to be future court proceedings to clarify the parties’ duties (especially the questions concerning the children).
To summarize, in either case, the best idea is that the couple should draft and sign a separation agreement. If the couple is married, this document will be submitted to the family law court as an official document. A judge will review it and, if it is approved, it will have the same legal effect as a divorce decree – meaning, it is enforceable through the family court system if necessary. If the couple is not married, then their separation agreement functions as a plain old contract. If one side breaches the agreement, the other side can begin a lawsuit to enforce it.
Most states allow couples to become legally separated. There are only six states that do not offer some form of legal separation. The states that do not allow for legal separation are the following:
What Types of Things are Included in a Legal Separation Agreement?
Separation agreements can contain provisions for anything that a couple wants to define before legally separating. This typically includes:
- Living Arrangements
- Spousal or Child Support
- Custody and Visitation Schedules
- Divisions of Assets
- Various other financial responsibilities, e.g., who is paying for what bills
What Are Some of the Different Laws That States Have Regarding Legal Separation?
Although most states recognize some type of legal separation, some states may use a different name to refer to the process. Not all states follow the same procedures for it.
For example, Maryland has something called, “limited divorce,” which operates similarly to legal separation. New Jersey, on the other hand, has legal separation, but it is only available for partners involved in a civil union.
As illustrated by the above examples, circumstances for legal separation depend on the laws of each state. Some state laws even require that couples be legally separated before filing for divorce. Other scenarios that frequently differ across states include:
- Permitting the court order from the initial legal separation to serve as a divorce proceeding
- Requiring that the couple start the process of divorce, even if already separated
- Giving courts the authority to decide whether to change a separation agreement into a proceeding for divorce
A Special Case: Common Law Marriage
It may surprise you, but you may be married without ever having a wedding. This is due to a doctrine called “common law marriage.” Now that same-sex couples can marry in the traditional manner, common law marriage will probably fade away with time. It is very important, however, for couples whose relationships predate the beginning of same-sex marriage.
Since they could not marry, in the past many couples held themselves out as if they were married. They expected friends and family to treat them as if they were married. They did all the things married couples do: mingled their bank accounts, paid bills together, celebrated anniversaries, etc. They acted “as if” they were married; it was the best option that society allowed them. Today, those couples may be married even though they never had a traditional wedding.
Common law marriage is often considered the original form of marriage. It dates back centuries when a couple would:
- take up residence together
- behave as a married couple, and
- present themselves to the world as a married couple.
Although the laws vary some from state to state, these standards are still pretty much in force today. What states honor common law marriages?
- Florida – but only if the marriage was formed prior to Jan. 1,1968
- Georgia – but only if the marriage was formed prior to Jan. 1,1997
- Indiana – but only if the marriage was formed prior to Jan. 1,1958
- New Hampshire
- Montana – allowed because not explicitly prohibited by state law
- Ohio – but only if the marriage was formed prior to Oct. 10,1991
- Pennsylvania – but only if the marriage was formed prior to Jan. 1,2005
If you and your partner entered into a common law marriage in states that recognize it, the process of separating property during a split is somewhat easier. Partners who are married under common law have the same rights to assets, obligations and child custody/child support as other married couples.
Once a common law marriage has been established, it is legal and binding, just like a formal marriage. To end a common law marriage, a court must grant a divorce, or a partner must pass away.
Do I Need a Lawyer to Get a Legal Separation?
If you are thinking about whether to enter into a separation agreement, you should contact an adoption lawyer. An experienced lawyer will be able to discuss the different laws that apply to legal separations in your state and how they may affect you.
Additionally, speaking with an attorney can help you to assess the best options, as well as plan ahead in the event that the separation becomes a divorce proceeding. They can also answer any questions or concerns that you may have in regard to getting a legal separation.
Finally, it is important that both you and your spouse retain separate attorneys to draft and review your separation agreement. This will help to ensure that all of the provisions are equally divided and fair.