On June 26, 2013, the US Supreme Court struck down a key portion of the Defense of Marriage Act (DOMA), which defined marriage as between a man and a woman for the purposes of federal law. Although the primary effect of the Court’s ruling allowed same-sex couples to receive the same federal benefits available to heterosexual couples upon marriage, the ruling extends to cover same-sex couples going through the divorce process. However, even with this latest DOMA decision, there are still many legal hurdles that same-sex couples may face when seeking a divorce in Massachusetts.
Impact on Massachusetts Divorce
Since same-sex marriage has been legal in Massachusetts since 2004, all divorces in Massachusetts have been treated the same, whether they involve same-sex or heterosexual couples. This gives same-sex couples in Massachusetts an advantage over others, because most states will not render a divorce decree if the state does not find that the couple was legally married from the beginning.
However, there are several issues that may make same-sex divorce problematic. For example, the length of the relationship is factored into most divorce settlements. But what happens if a same-sex couple has been living together in Massachusetts for 10 or 20 years before same-sex marriage became legal? Should the length of the relationship be considered the length of time the couple was together before the law was passed, or the shorter length of their “legal” marriage?
Furthermore, same-sex couples may face extra costs when attempting to seek a traditional divorce. For example, since same-sex divorce is still a relatively new area of the law, a court may seek additional briefs from attorneys of couples trying to get divorced because they want to ensure they are taking the right steps. This results in increased legal fees for the client. Additionally, same-sex couples are more likely to have their divorce applications rejected, which can lead to appeals and, in turn, more legal fees.
Lastly, many same-sex couples face additional child custody costs, even in states like Massachusetts where same-sex marriage is recognized. Since either one or both of the parents are not the biological parent of the child, an entirely new set of problems may arise with respect to whether or not a partner has the legal standing to argue for custody of the child.
How Collaborative Law Can Help
Many of these issues can be addressed in the collaborative process, which is well suited for people with unique issues and problems that are not addressed in traditional courts of law. Collaborative law allows parties to reach an agreement without ever having to enter the traditional adversarial legal system. This will result in considerable financial savings for the parties. Furthermore, the collaborative law process provides a better environment to make decisions concerning the custody of children because it provides an opportunity to fully explore the best interests of the child, rather than having the outcome determined solely by a judge or the attorneys. An experienced collaborative divorce attorney can help you avoid the legal pitfalls that may occur when seeking a divorce. Contact the Law Office of Martin Murphy at (781) 285-8989 to learn how collaborative law can help you navigate the divorce process.