With the recent changes in federal and Ohio law, LGBT couples are now afforded the same right to marry previously only granted to the union of a man and woman. There is the fair expectation that some of these marriages will similarly end in divorce or dissolution. While many of the legal issues involved in the termination of an LGBT marriage are the same as those traditionally between a man and a woman, there are some important distinctions and issues that need to be addressed.
- Dissolution or Divorce
- As with gender-opposite marriages, the method of terminating a marriage has an overall impact on both the financial and emotional cost to the parties. See Article on this website for the options.
- Property Division and Valuation
- LGBT couples may have created a “common-law marriage” by living together and holding themselves out to the community as a couple for many years prior to legally marrying. While common-law marriage was abolished in the State of Ohio in 1991, how property was acquired and held prior to the legally recognized marriage may change how to approach to its valuation and division. For example, when does a particular piece of property become marital under state law? When and for how long?
- Cash and Medical Support
- Among other factors, the length of a marriage is used by the Courts to determine spousal support. It may be difficult to convince a judge that an orderfor spousal support should include the amount of time the parties were together before they could legally marry.
- Child Custody
- In addition to children brought from a previous relationship or marriage, the services of a surrogate or use of sperm not processed by a licensed doctor or clinic can give rise to potential custody or child support Custody battles also often arise using the lack of a biological link as a basis for denying custody or visitation. Before moving ahead with a divorce or dissolution, a petition to the Juvenile Court for an order of shared custody should be considered. Shared custody acknowledges that the role of the non-biological/legal parent is valued and that their continued involvement in the life of the child(ren) is in the child’s best interest.
- Were private agreements entered into prior to being married? Determining the validity of these agreements will be necessary, and may be a source of additional litigation if the parties cannot agree.
Generally, LGBT couples face many of the same issues when terminating their marriage as opposite-gender couples traditionally have, but, unique issues arise that sometimes pose tricky legal questions.