Massachusetts has been a leader in the gay rights movement. The first state to recognize marriage equality, Massachusetts has long been a haven for same sex couples seeking to build a life together. Fears of “attacks on traditional marriage” also seem to be unfounded; one NBC News survey found that states which allow same-sex marriage also have lowered divorce rates.
Same-sex marriage is now legal in 19 states and counting. Along with the benefits of legal marriage, same-sex couples are seeking equal rights in adoption, child custody matters and divorce.
Gary Gates, Distinguished Scholar at the UCLA School of Law, found that same-sex couples are experiencing divorce at about equal rates to heterosexual couples. The overall divorce rate in Massachusetts has not changed since 2004, when same-sex marriage became legal. Currently, Massachusetts couples divorce at the rate of 2.2 divorces per 1,000 people.
The need for same-sex couples to divorce is very real. While no one enters marriage expecting it to dissolve, the reality is that many couples eventually decide that a split is necessary. Moving on with life after divorce can be difficult, but without the legal process of divorce it can be difficult to move on emotionally, let alone financially.
Couples who were married in Massachusetts and who subsequently moved to other states have found the inability to divorce an extraordinary hardship. The issues resolved in divorce, such as a division of assets, child custody and spousal support ensure that accumulated assets are divided as fairly as possible. Divorce also generally keeps each partner to the marriage in as equal a financial situation to what they experienced during the marriage as possible. This is especially important in relationships in which one spouse cares for the home or children instead of entering the workforce.
Adoption and child custody
In 1993, the Massachusetts Supreme Judicial court ruled that same-sex couples could adopt children. A Massachusetts resident can adopt a child regardless of sexual orientation. In addition, a same-sex couple can adopt a child jointly, meaning that the adopted child has two legal parents – more accurately reflecting the family situation.
Under state law, a child born to a married couple is assumed to be the child of both members of the marriage. However, Massachusetts couples should still consider jointly adopting a child. This can help if a couple moves out of state.
When divorcing, a same-sex couple will have the same child custody and visitation negotiation as any other married couple. A court will determine or approve a child custody and visitation schedule according to the best interests of the child. There is no one single factor that governs which parent will receive custody (or if there will be joint custody). Instead, the court looks to a totality of the circumstances to determine the child’s best interests.
A family law attorney can help
Massachusetts recognized a decade ago that same sex couples should have equal marriage rights. However, that does not mean same-sex couples do not need to create various legal protections for themselves and their children. People considering divorce should contact an experienced family law attorney to discuss next steps in a divorce.