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Same-sex divorce has its unique challenges

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Although the federal right to marry someone of the same sex has only existed in the U.S. since 2015, you and your partner may have been together for years, perhaps even decades. During that time, you may have lived as if you were legally married, perhaps purchasing property together, establishing joint bank accounts and sharing responsibility for debts.

When you finally had the freedom to marry, you took the opportunity to legalize your union to obtain the benefits married couples share. However, despite your past commitment to one another, you and your partner have decided to divorce. Unfortunately, as a same-sex couple, you may have complications that opposite-sex spouses do not.

Your assets and liabilities

Because of the many years you were together before the legalization of same-sex marriage, you already acquired assets and liabilities jointly. However, Colorado law recognizes marital property as that which you and your spouse acquired from the date of your marriage. In Colorado, the court must first determine the date of marriage, which could be one of several dates, depending on the factual scenario of your case.  There can then be disputes about how to divide the marital assets and debts. The courts understand that this situation exists for many divorcing couples of the same sex, but you may still have to fight for what is rightfully yours.

In addition to separating your joint property, you and your partner may have a conflict regarding the right to maintenance (alimony). Your committed relationship may have lasted for decades, but if the court determines your marriage was only a few years, your maintenance could be very limited. 

Your children

Perhaps the most difficult and emotional dispute you and your spouse may encounter in your divorce involves any children from your marriage. Like many same-sex couples, you may have been the parent of your partner's children, for all intents and purposes. Legally, however, if you did not adopt the children, you may have no right to custody or visitation. On the other hand, if your spouse did not adopt your child, you may have no right to seek child support.

You and your partner may be able to work through these issues in mediation or another form of dispute resolution, and this is often a preferred method of divorce. However, it is wise to have individual legal representation from an attorney who is familiar with the unique challenges of same-sex marriage and divorce and who is prepared to advocate for you both in mediation and, if necessary, in court.

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