Until recently, federal law only allowed two people of the opposite sex to be married legally. Now, LGBTQ couples have marriage equality. This is a positive step, but it also puts same-sex partners that want a divorce in a difficult position.
If you’re in a same-sex marriage, and you’re considering a divorce, you need the assistance of a Boise LGBTQ divorce attorney. An attorney can answer your questions and offer objective advice. Don’t hesitate to reach out to our LBGTQ family law attorneys in Boise, Idaho for a consultation to find out more.
Why Do I Need a Lawyer for a Same-Sex Divorce?
While divorce is difficult under any circumstances, LGBTQ couples face unique challenges. For example, non-biological parents could lose custody during divorce if they did not legally adopt their child. Equitable division of marital property can be problematic if a couple obtained significant assets before they were able to legally marry.
An experienced attorney can help you to navigate these issues and safeguard your interests. Working with legal counsel can help to ensure smooth divorce proceedings. An attorney can protect your rights, minimize stress, and can keep your case from going to court.
Divorce can be painful, which is why it’s so important to have someone that understands the law on your side. Your Boise divorce attorney can provide you with valuable support and guidance and can help you to complete the process as quickly as possible.
Is Same-Sex Divorce Allowed?
In 2015, the Supreme Court issued a decision legalizing same-sex marriage. Prior to the ruling, same-sex marriages were not recognized in every state, creating challenges for couples that wanted a divorce. Now, same-sex couples have the right to divorce in all 50 states.
With that said, there are numerous obstacles that couples may face when filing for divorce. Divorce can be particularly complicated when couples were married before marriage equality was legalized or if couples have multiple registrations for civil unions or domestic partnerships.
LGBTQ couples are subject to the same divorce laws as heterosexual couples. This means couples need to have resided in Idaho for a minimum of six weeks before filing for divorce. It is possible to get a divorce in Idaho without stating that either spouse is at fault.
Who Can File for a Same-Sex Divorce?
Either spouse can file for divorce in Idaho providing that they have resided in the state for at least six weeks. In order to file for divorce, you must have a reason to end the marriage that is accepted under the law. This is referred to as “grounds.” Grounds for divorce in Idaho include irreconcilable differences, adultery, willful neglect, or habitual drunkenness.
In order to end your marriage, you will need to file divorce papers and have copies sent to your spouse. Your spouse will have the opportunity to contest the divorce and file additional papers. If your spouse does not have any objections with the papers you have filed, they can sign the papers and return them to either you or the court.
If a divorce is uncontested, it typically takes between 30 and 90 days to file a divorce. As long as you are a resident of Idaho, you can file for divorce in this state even if your spouse does not reside there. It is very common for divorcing couples to live in different states.
Where Will the Same-Sex Divorce Take Place?
If both you and your spouse reside in Idaho, you should file divorce in the county that your spouse resides in. If your spouse lives outside of Idaho, you should file for divorce in the county that you live in. If the divorce is uncontested, it is possible to dissolve a marriage without going to court.
There are two kinds of uncontested divorce in Idaho: divorce by stipulation and divorce by default. In divorce by stipulation, the terms of the divorce must be agreed on by both parties. If one party files for divorce, and the other party does not respond within 20 days, they are considered to have defaulted. This will allow you to finalize the divorce without a response.
If you and your spouse are unable to reach an agreement on issues like divisions of marital property, grounds for the divorce, and other marital issues, the case will go to court. There, the issues will be presented to and decided by a judge.
Can I Afford a Boise LGBTQ Divorce Attorney?
Many people believe that they cannot afford to hire a lawyer for their divorce. It is important to know that there are ways to hire an attorney even with limited funds. For example, the court could order your spouse to pay your attorney’s fees.
Before making any decisions, it’s best to schedule a consultation with a Boise LGBTQ divorce attorney so that you can discuss your options and get more information about potential costs. There’s no cost for an initial consultation, and an attorney can provide you with valuable insight in guidance.
In many cases, working with a divorce attorney could actually save you money. A lawyer can ensure that your case is filed quickly and can work to keep your case from going to court. Your attorney will also make sure that the division of property and assets is fair.
Property Division
Idaho has community property laws. This means that assets that were acquired during a marriage belong equally to both spouses. Assets that were gifted through inheritance or were acquired before the marriage are considered to be a spouse’s separate property. However, because same-sex couples were not able to legally marry in Idaho until 2014, it may be possible to have a separate property classified as community property.
Spouses can divide assets in a number of ways. It is possible to assign items to a certain spouse. Assets can be sold and the proceeds can be divided between both parties. A spouse can buy out the other party’s share of an asset, allowing them to own that asset exclusively. In rare cases, spouses may decide that they want to continue to hold community property together.
Alimony
In Idaho, alimony is referred to as maintenance. It is a type of financial support paid to or by your spouse. Maintenance can be granted if a party is unable to support themselves through employment or does not have the money and assets necessary to pay for reasonable needs. The amount of maintenance awarded and the length of time that maintenance will continue will be determined by a judge.
Maintenance can be awarded to same-sex couples in Idaho. Factors that are considered include the age and condition of the petitioning spouse, the earning ability of the petitioner spouse, the length of the marriage, and the ability of the receiving spouse to meet their needs. Idaho does not have a set formula when determining maintenance.
Custody Issues
If a same-sex couple has children after marriage, both parents have visitation and custody rights. If a divorcing couple is unable to reach a custody agreement, arguments from both parties will be reviewed by a judge. The judge will issue an arrangement on custody, visitation, and support that prioritizes the best interests of the child.
Custody issues can be more complex if a child was born or adopted prior to the marriage. If the non-biological parent has not taken steps to become the adoptive parent of the child or obtain a parentage judgement, they may not be awarded custody or visitation rights. In these cases, it is unlikely that the non-biological parent will be ordered to pay child support.
When Both are Legal Parents
When both parties are legal parents, the type of custody awarded will depend on the best interest of the child or children. Idaho recognizes two different types of custody: physical and legal custody. Where a child lives is determined by the physical custody arrangement. Legal custody gives parents the right to make major decisions for a child, such as where they will attend school or what sort of medical care they will receive.
If parents share physical and legal custody, they are considered to have joint custody. In the majority of cases, joint custody is considered to be in the best interests of the child. However, there are some circumstances in which one parent may be awarded full custody. Full custody will be awarded if the judge believes that it is the best option for the child or children.
Child Support
Idaho uses an income shares model when determining child support. Under this model, a judge will estimate what both parents would spend on the child if the family was intact. The amount of time that a child spends with each parent will also be considered when awarding support.
Nonbiological same-sex parents that have not adopted a child may be viewed as non-parents by the court. This means that the nonbiological parent does not have custody or visitation rights. It also means that the biological parent is unlikely to be awarded child support.
Contact Our Boise LGBTQ Divorce Attorneys Today
Divorce can be a difficult issue for couples to navigate, especially in the case of same-sex marriage. Working with a Boise Family Law LGBTQ divorce attorney will ensure that your rights are protected. With the support of an attorney, you’ll be able to reduce stress and avoid obstacles during this challenging time. Contact our law firm today at 208-968-9060 to learn more about your legal options.
