Potential Issues in Same-Sex Divorce

Prior to the 2015 ruling in Obergefell v. Hodges, which legalized same-sex marriage nationwide, many same-sex couples had difficulty obtaining a divorce as same-sex marriage was only legal in some states. Other states that did not recognize the marriage did not recognize the right to divorce, because they didn’t recognize the underlying marriage as legal or valid. This means that same-sex couples were only able to file for divorce in states that recognized the marriage. If they had moved to a state (like Arizona) that did not recognize the legality of the marriage, they would have to find a way to get residency in a state in which it was legal in order to file for divorce.

Sounds complicated, right? Although that major issue is no longer an obstacle since Obergefell, there are still some unanswered questions and difficulties that same-sex couples face in Arizona:

Spousal Maintenance (Alimony): Although Arizona laws have moved past the premises of traditional gender roles and spousal maintenance does not favor either gender on paper, many in the legal field and litigants themselves still assign labels and have biases as to who is eligible for spousal maintenance based on those traditional gender roles of “homemaker” and “breadwinner”. Divorce of same-sex couples adds another layer to challenge traditional thinking, as they are, sometimes unconsciously, subject to the bias that still exists with respect to which spouse is qualified to claim spousal maintenance, even in a gender-neutral reading of the law.

Access: In some instances, same-sex couples still come across the issue of access to their spouse’s financial information and other accounts, including bank accounts and retirement plans, as many institutions are still working on getting systems, personnel, and overall understanding of the new laws “up to speed” on marital rights of access and property division for same-sex spouses.

Although same-sex couples should be considered held to the same standards, rights, and expectations as “traditional” married or divorced couples, there is still a disconnect as institutions and individuals still grapple with the concept of equality for same-sex marriages.

Due to this disconnect that will likely prevail for the near future, same-sex divorce can be extremely challenging. In order to protect yourself in today’s legal landscape, it is highly recommended to retain an attorney to ensure that your case is being handled with the highest level of diligence.

If you find yourself, a friend or a loved one in need of legal assistance and you would like to work with one of our experienced Attorneys, please call OWENS & PERKINS at (480) 994-8824to schedule your free 30 minute consultation.