Same Sex Divorce / LGBTQ Lawyers In Michigan – ChooseGoldman

The U.S. Supreme Court’s recent Obergefell decision legalized same-sex marriage in Michigan and the other 50 states. As a consequence, it has also opened the door to same-sex divorce. While there might not be laws that directly distinguish between gay and straight couples, there are still some factors which a same-sex couple should be aware of if they intend to get a divorce.

Is everything about a divorce different for a same-sex couple in Michigan?

Many things are the same in Michigan. For example, issues of protection orders and domestic violence are the same for both gay and straight couples.

What if there are no children involved?

Just like a straight couple’s divorce, a same-sex divorce is greatly simplified if there are no minor children involved. Check out our free Divorce ebook. Issues like spousal support/alimony should be the same as if you were a straight couple. Feel free to consult the chapter on spousal support/alimony for more information. You should also consult the other chapters dealing with divorce to understand how children affect the overall process.

However, the issues of division of property, child custody, and child support have a few wrinkles when it comes to same-sex couples in Michigan.

How is the division of property different for same-sex couples in Michigan?

Same-sex marriage has only been legalized relatively recently. If you are getting divorced now, you likely lived with your spouse in an intimate partnership for a long time before you got married. Normally when a married couple gets a divorce, the court will distinguish between property that is separately owned and that which is marital or shared. Typically, only property that was acquired after the couple got married is considered marital property and divided accordingly. This rule is not always fair for a gay couple who has been living together intimately for years, waiting for the right to get married. If the two of you have shared a house, but it is only in one spouse’s name, who should it belong to? Your lawyer(s) needs to raise issues like this with the family court judge.

How do children affect a same-sex divorce in Michigan?

A same-sex couple with a child potentially faces many pitfalls and issues that straight spouses do not. This difference is not due to any bigotry or discrimination. It is an artifact of certain aspects of Michigan law.

The major issue which causes these complications is the fact that same-sex couples often don’t have biological children. Even when they do, it is usually only related to one of the spouses. Such situations are only further complicated by the fact that there is a good chance that the child was either born (via surrogacy) or adopted before the couple was legally allowed to get married.

When deciding custody, Michigan law puts a strong emphasis on married spouses and biological parents, which can sometimes disadvantage same-sex couples.

If the two partners jointly adopted the child after the marriage, then there is no issue. They are both the legal parents of that child and child custody will follow the same procedure as any other married couple seeking a divorce.

If your partner adopted the child before the marriage, and you want any sort of custody rights, it is highly recommended that you obtain a stepparent adoption for that child. Without such an adoption, you have no legal rights to that child unless you and your former spouse reach an agreement through mediation.

What if the child is biologically related to one of us? What if it’s a surrogate child unrelated to either of us?

If one of the spouses in a same-sex couple (two women) conceives a child through a sperm-donor, that woman is the child’s biological parent. She would have parental rights even if the child was born before she married her partner. If the child is born during the marriage, then both spouses are legal parents. The other spouse can further secure their parental rights by formally adopting the child, but this is not strictly necessary. This is known as a confirmatory adoption.

If the child is born before the marriage, then the other spouse must adopt the child to have any parental rights. Furthermore, you must make sure that the sperm donor terminated their parental rights, or they may also have a legal claim on the child. This can be resolved through a sperm donor agreement, which is still legal in Michigan.

If a gay male couple used a surrogate mother to have a child, then the biological parent automatically has parental rights. The other spouse must adopt the child to obtain similar rights. It is also important to make sure that the surrogate mother formally terminates their parental rights, especially since binding surrogacy agreements are illegal and unenforceable in Michigan.

A non-biological parent can also acquire parental rights through the equitable parent doctrine. Under this doctrine, a non-biological, non-adoptive parent might still be able to gain parental/visitation rights so long as the following requirements are met:

• The equitable parent and the child must acknowledge each other as parent and child
• The equitable parent desires to have parental rights.
• The equitable parent is willing to accept the obligation to pay child support, the same way any other parent would.

There is no guarantee that an equitable parent will be made to pay child support. That depends on the income of both spouses and how much parenting time they both spend with the child.

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