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Considerations for LGBTQ+ Couples Divorcing With Kids

The right to marry a partner of the same sex has only been legal nationwide since 2015. There are many implications of the still-short history of same-sex marriage in the US. One of the most critical is that the history of divorce between LGBTQ couples is even shorter. 

There are decades of precedent and legislation dictating how heterosexual divorces should be handled, but that’s not true for same-gender spouses. While the process is similar in many ways, there are some exceptions that can make LGBTQ divorces unexpectedly complicated, particularly for parents. Here’s what you need to know about your rights during your divorce and the questions to ask to avoid unnecessary distress. 

The Legal Rights of Same-Sex Parents and Spouses in Oregon

Since the Supreme Court legalized same-sex marriage in 2015 and the 2022 passing of the Respect for Marriage Act enshrined the right into law, all married couples have the same rights. Regardless of a couple’s genders, they both have the same protections under state and federal law during marriage and divorce. These include the right to the equitable division of assets and potentially the right to spousal support during a divorce. 

Parental rights are a little more complicated since those are established primarily on a state-by-state basis. Oregon only grants parental rights to the legal parents of a child. Currently, you may be considered your child’s legal parent if:

  • You gave birth to them
  • You were married to the biological mother when they were born
  • The child was born within 300 days of the end of your marriage to the birth mother
  • You legally adopted the child

None of these rules include restrictions on gender. Regardless of whether your children are adopted, born with the assistance of a donor or surrogate, or biologically related to you, you have the right and obligation to raise and support them. 

Questions to Ask Before You File for Divorce

If so many aspects of divorce are unaffected by a couple’s respective genders, how is LGBTQ divorce different? That’s a great question. Many of the unique complications regarding same-sex splits do not actually stem from the marriage. Instead, they are connected to events that occurred before the couple married. 

With that in mind, let’s look at four crucial questions all LGBTQ parents should ask before filing for divorce.

Who Has Parental Rights?

While Oregon’s parentage regulations don’t discriminate based on gender, they can pose problems for same-gender couples with children older than their marriage. If you were not married when you welcomed your child into your family, you or your spouse may be legally considered a stepparent, with significantly fewer rights.

Potential scenarios where one of you may not have parental rights include:

  • Your children resulted from a previous relationship, and the biological parent has not ceded parental rights. 
  • You’re raising your spouse’s children from a previous relationship, and you have not performed a stepparent adoption.
  • You had children through IVF before marriage, and only one spouse’s name is on the contract.

Each of these scenarios can have devastating impacts on your family. Without legally recognized parentage, you do not have the right to custody or child support. If you get a divorce without establishing parentage, you may unwittingly lose the right to raise your kids after your split. It’s crucial to check your child’s birth certificate or adoption records to confirm whether you are their legal parent before proceeding with a divorce.

Do You Need to Dissolve a Domestic Partnership Separately?

Since marriage has only been an option for couples for a limited period, many LGBTQ spouses have previously registered domestic partnerships (RDPs). These partnerships are separate from marriage and do not always impart the same rights. Furthermore, every state has unique rules regarding whether a couple can be registered domestic partners and spouses concurrently and how the partnership must be dissolved. 

In Oregon, it’s possible to be married and have an RDP at the same time to the same person. If you married after registering your partnership, you must dissolve both to end your legal relationship fully. Luckily, the process is as simple as checking the right boxes on your petition for dissolution form. 

How Much of Your Relationship Qualifies for Spousal Support?

Spousal support is another potentially contentious issue. In Oregon, the courts award support in part based on how long a couple has been married. This does not include the length of the relationship before marriage. If you and your spouse were in a committed relationship for a decade before marriage, that time does not count toward your spousal support order. 

However, if a couple had a registered domestic partnership, the state considers the registration date the start of their legal relationship. You may be eligible for “partner support,” the equivalent of spousal support, based on the duration of your partnership as opposed to your marriage. 

Should You Consider Mediation or Cooperative Divorce?

The legal technicalities involved in same-sex divorce can quickly complicate your split. If your divorce goes to court, it may take substantial time to untangle issues related to parentage, RDPs, and support orders. A better solution for many couples is to consider a cooperative divorce.

Alternative dispute resolution methods like mediation and negotiation outside the courtroom can streamline your Oregon LGBTQ divorce. As long as you and your spouse are willing to remain civil, you can address the most complicated issues with the help of an experienced family law attorney. 

Compassionate Legal Counsel for LGBTQ Family Law Matters

If you’re preparing to end your LGBTQ marriage, you deserve expert legal help. At Regele Law, LLC, our Oregon family law attorneys are dedicated to helping all families resolve disputes and handle legal matters with care and compassion. Schedule your consultation to learn how we can support you through even the most complex same-sex divorce.