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Unique Difficulties for LGBTQ+ People Going Through Divorce

By Sheryl Rentz on November 6, 2023

Going through a divorce can be a challenging and complex process, especially for LGBTQ+ couples in Pennsylvania. There are several unique factors to consider, such as state laws, legal recognition, parental rights, property division, and the importance of social and emotional support. It’s crucial to understand these aspects to navigate the process successfully. Most importantly, don’t hesitate to speak with a knowledgeable Montgomery County LGBTQ+ divorce attorney about protecting your rights and assets.

The Impact of Pennsylvania Laws and Regulations on LGBTQ+ Divorces

Same-sex marriage is regulated under various Pennsylvania laws and regulations that generally govern traditional couples. The impact of such laws on LGBTQ+ divorces includes:

• Grounds for divorce: Since same-sex marriage was legalized in 2015, same-sex couples cannot claim a marriage invalid and, therefore, subject to annulment. Pennsylvania allows for no-fault divorce, which means you don’t need to prove wrongdoing by either party.
• Equitable distribution: Pennsylvania’s approach to equitable distribution involves a fair but not necessarily equal division of marital property, considering factors like the duration of the marriage and each spouse’s contribution.
• Alimony: Alimony decisions are based on the income available and ensuring a reasonable lifestyle rather than the couple’s standard of living during their marriage.
• Child custody: Pennsylvania’s child custody laws are designed to prioritize the child’s best interests. Section 5328 of the Pennsylvania Statutes Annotated outlines various factors considered in custody decisions.

Legal Recognition in Pennsylvania

In 2013, the American Civil Liberties Union (ACLU) and Gay and Lesbian Advocates and Defenders (GLAD) filed a lawsuit in Pennsylvania on behalf of 23 plaintiffs. This lawsuit contested Pennsylvania’s ban on same-sex marriage, arguing that it violated the U.S. Constitution’s guarantees of equal protection and due process. On May 20, 2014, U.S. District Judge John E. Jones III issued a groundbreaking ruling. He declared Pennsylvania’s ban on same-sex marriage unconstitutional and struck down the state’s 1996 law that prohibited same-sex marriage.

The nationwide shift toward marriage equality reached its zenith in 2015 when the U.S. Supreme Court issued a landmark ruling in Obergefell v. Hodges. This historic decision not only declared same-sex marriage a constitutional right but also mandated that all states recognize same-sex marriages.

With the legalization of same-sex marriage in Pennsylvania, bi-national same-sex couples now enjoy the same immigration benefits and protections as opposite-sex couples. This change ensures that the foreign-born spouse in a same-sex marriage can obtain a marriage-based green card, paving the way for them to live and work legally in the United States.

Parental Rights and Custody Issues in Pennsylvania

Pennsylvania’s legal framework presents challenges for LGBTQ+ non-biological parents seeking parental rights. For example, the absence of a biological connection between parent and child can lead to uncertainties in judicial decision-making for custody and visitation rights.

Transgender parents in Pennsylvania may face legal complexities in obtaining recognition and parental rights. This could involve navigating a complex web of regulations, particularly if gender transition occurs after the child’s birth, which can be a time-consuming and intricate process.

LGBTQ+ and non-biological parents should seek the legal counsel of an experienced divorce lawyer to secure their parental rights. This may involve adoption, legal agreements, or court orders. Staying informed and exploring avenues to protect their family units is crucial in Pennsylvania.

Property Division and Financial Considerations in Pennsylvania

In Pennsylvania, marital property is divided fairly but not necessarily equally upon divorce. This is important for LGBTQ+ couples who may have acquired assets before and after same-sex marriage was legalized.

• Pre-legalization assets: Before same-sex marriage was legalized, LGBTQ+ couples lacked legal recognition and protections. Many managed their assets independently or under complex legal structures to secure their shared financial future, including property, savings, investments, and more.
• Post-legalization assets: After same-sex marriage was legalized, many LGBTQ+ couples combined their finances, acquiring assets jointly, such as a home, bank accounts, or investments. These assets are considered marital property and subject to equitable distribution in a divorce.

Additionally, prenuptial and postnuptial agreements are valuable tools for LGBTQ+ couples to outline how their assets should be divided in case of divorce. These legal agreements can address various financial matters, such as property division, spousal support, and more. They provide a level of control and clarity in the event of a divorce, ensuring that both partners’ interests are protected.

LGBTQ+ couples in Pennsylvania should be aware of potential financial challenges related to spousal support and retirement funds. Understanding spousal support and retirement savings’ implications and being prepared is crucial during the divorce process.

Social and Emotional Support in Pennsylvania

Going through a divorce is an emotional journey; having support is invaluable. In Pennsylvania, there are local LGBTQ+ support groups and legal help organizations offering assistance and resources during this challenging time. An important resource for connecting to LGBTQ+ support communities in Pennsylvania is CenterLink at www.lgbtqcenters.org

Here To Provide the Legal Support and Guidance You Need

LGBTQ+ individuals going through a divorce in Pennsylvania face unique challenges, but with the right legal support and resources, you can navigate the process successfully. At the Law Offices of Sheryl R. Rentz, P.C., we are here to guide you through this chapter in your life. Our Montgomery County LGBTQ+ family law team is committed to helping you protect your rights and achieve the best possible outcome.

Call us today at (610) 645-0100 to schedule a free consultation to discuss your rights and options.