Same Sex Marriage and Divorce in Washington
Under current Washington State family law, divorce for married same sex couples is really the same as for straight couples. As your Seattle Family Law lawyer will tell you, a marriage is a marriage no matter the genders of the parties, so a divorce is the same as well. However, there can be a few wrinkles that I will discuss below.
The History of Same Sex Marriage in Washington State
This ability for same sex couples to marry and divorce was of course not always true. For most of our history Washington State law did not recognize same sex couples as a family unit. Some years ago Washington developed domestic partnerships, which allowed same sex couples to register as a domestic partnership, which gave them the same rights to divorce as married couples. Thus, our Seattle divorce law firm can assist all LGBTQ divorce and family law issues.
A few years after that Washington finally moved to allow same sex couples to marry. At that time, most domestic partnerships were automatically converted to marriages. (There was some exception for senior couples who elected the domestic partnership option instead of marriage to avoid impacting social security and pension benefits.)
Therefore today many same sex couples are either married by way of a domestic partnership or married directly. If the couple is not married, it should be because they have chosen not to be, and would have the same status as any other unmarried couple. If you have any concerns or questions about your status, contact your Seattle divorce law firm for advice.
Special Issues for Same Sex Couples
A married same sex couple has the same rights and process to divorce as any other married couple. However, there are a few special issues to be aware of.
First, it is possible that the couple has moved from a different jurisdiction where they were not able to marry (such as a different country). If they wish to be married, they should move ahead with formalizing a marriage after they arrive here.
If you moved here from an area that did not allow same sex marriage, you may want to talk to a Seattle divorce lawyer. If they have not formalized a marriage since moving to a location that allowed it, then presumably you will simply be treated as an unmarried couple.
Artificially Short Term Of Marriage
Another issue is that at the time of divorce the marriage may not have been for as long a term as it might have been if they had been allowed to marry earlier. This can affect property division and some benefits under certain circumstances. For instance, military spouses acquire certain pension rights once the couple has been married 10 years.
More commonly, property that was acquired prior to marriage is often treated as separate property, while property acquired during marriage is more typically treated as community property. Thus it may be necessary to argue the circumstances that lead to the couple marrying later than they might otherwise have done. We would want to look into whether the Committed Intimate Relationship doctrine might apply to create community rights prior to the date of marriage. Also, the court does have a certain amount of discretion to divide property as it finds fair under the circumstances.
Similarly, alimony is often linked to the length of the marriage, though there is no specific formula. Again, this could require argument about the special involuntary circumstances related to the length of the marriage. If you and your spouse married later than you would have done had marriage been allowed earlier, make sure and discuss this with your Seattle divorce law firm.
Is Getting Custody Difficult?
Finally, an issue that may arise more often in same sex marriages, but not exclusively there, relates to any children the couple may have. If one spouse is not a biological parent of a child, and there has not been an adoption or other process to create a legal parent child relationship, then sorting out post-divorce parenting may be more complicated.
As our understanding of what constitutes a family as expanded, there has been a need to develop new legal doctrines to address non-traditional families. One of those doctrines is called “De Facto Parentage” which has been codified in RCW 26.26A.440. Under this standard, on non-biological parent can still be found to be a legal parent if they have been acting in that role. Specifically, the court must find:
- The de facto parent resided with the child in the same household;
- The de facto parent assumed the role of parent without compensation;
- The de facto parent parented long enough to develop a parent-child bond; and
- A legal parent of the child fostered the de facto parent’s relationship with the child.
These are the kinds of issue you should make sure you discuss with your Seattle family lawyer when you meet.
Is Adoption Harder For Same Sex Couples?
Washington law permits same sex couples to adopt, and permits LGBTQ individuals to adopt. Therefore there should not be a problem with one partner being able to adopt the biological child of the other partner with that partner’s consent.
It is possible that finding an outside couple or agency willing to consent to adoption of a child by a same sex couple could be more difficult, as prejudices still exist. A very helpful online resource for more information is Lifelong Adoptions.
How a Seattle Same Sex Divorce Lawyer Can Help
Divorce is a complicated process that carries important ramifications concerning your personal life, your financial affairs, and your children. An experienced divorce lawyer can help you navigate these difficult issues in order to achieve a result that is fair for everyone involved.
- A lawyer can help you understand your options. When it comes to divorce, most people envision an acrimonious and public court proceeding. However, there are alternatives. An experienced Seattle same sex divorce lawyer can help you understand your options so that you can make an informed decision.
- A lawyer can negotiate the division of property. Divorce can be a stressful process and emotions often cloud the parties’ ability to negotiate fairly. Using their experience and knowledge of the law, a Seattle same sex divorce lawyer can help you quickly negotiate a property settlement that is fair for both sides.
- A lawyer can help negotiate your parenting plan. Similar to the division of property, this is another issue that can be difficult for spouses to resolve on their own. A Seattle same sex divorce lawyer can help you reach an agreement pertaining to the custody, visitation, and support of your children.
Ultimately, a Seattle same sex divorce lawyer is often able to resolve these issues more quickly and with less stress than the parties can themselves.
Frequently Asked Questions About Same Sex Divorce in Washington
My partner and I were together for several years but never married. Do we need to get a divorce in order to separate?
First, it’s important to understand that Washington does not recognize common law marriages, either for same-sex or for heterosexual couples. Unless you were registered with the state of Washington as a domestic partnership, you do not need to get a divorce in order to separate.
So we don’t need to get divorced, but what about our assets and children?
Under Washington state law, you have property and custody rights if you were in a “committed intimate relationship.” A Seattle same sex divorce lawyer can help you negotiate agreements that govern the division of your property and the custody, visitation, and support of your children.
That said, partners who were unmarried but in a committed intimate relationship are not entitled to spousal support.
My partner never adopted my child. Are they entitled to custody and visitation rights?
This is a complicated issue in many same-sex separations. As mentioned above, there are various factors that can determine “de facto parentage.” If they can establish that they had a parental relationship with your child as provided for under Washington law, they may be entitled to custody and visitation rights even over your objection.
What if my partner no longer wants to have a relationship with my child?
The determination of “de facto parentage” must be initiated by the non-biological parent. As a result, your options are very limited if your partner does not wish to have a relationship with your child once you separate. You may be entitled to some child support, but this is also a very complicated issue – if you are in this situation, we encourage you to speak with a Seattle same sex divorce attorney to understand your options.
Call Seattle Divorce Services Today To Discuss Divorce for Same Sex Couples
If you wish to separate from a same sex partner, you can discuss your options with a Seattle divorce law firm. To set an appointment contact us through the form on our website or call us at 206-784-3049 or use the form on our website to schedule an appointment.