Same-Sex Divorce

A same-sex divorce is, in almost every respect, the same as an opposite-sex divorce. The process is the same, the issues are the same. If no children are involved, a same-sex divorce is indistinguishable from a heterosexual divorce without children: The focus of the proceedings will be to divide the community property, to determine if either party has a claim to spousal maintenance, and to end the marriage.

If both spouses are already established as legal parents of any children, then a divorce with children between a same-sex couple will also be the same as a divorce with children with a heterosexual couple: The Court has to apportion legal decision-making and parenting time (formerly known as legal custody and physical custody) and enter a child support order.

What makes same-sex divorce different from heterosexual divorces is potentially one issue: Paternity of the couple’s children. Under Arizona law, when a married woman gives birth, there is a presumption her spouse is the child’s other parent. The Arizona Supreme Court has recently clarified that this presumption applies to same-sex spouse of a woman who gives birth. Additionally, the Arizona Court of Appeals has instructed the Department of Economic Security to adjust its birth certificate forms to recognize to list same-sex parents on the birth certificates with the titles “mother-mother” or “father-father.”

While both of these advancements have rightfully been hailed as advancements for same-sex rights, many gaps and uncertainty still exist. For example, when children born to an unmarried woman in a committed same-sex relationship, her partner is not a legal parent and does not have even a presumption of paternity (unless an Acknowledgment of Paternity is executed). While spouses of married mothers have a presumption of paternity, Arizona law has not yet recognized a corresponding presumption for the spouses of married fathers who have a child during the marriage (complicated also by the fact that surrogacy is illegal in Arizona, which cuts down one of the avenues for men in a same-sex relationship to have a biological child).

Additionally, a presumption of paternity is just that—a presumption. There are four presumptions of paternity under Arizona law. A presumption can be rebutted, and even a married spouse of the birth mother might find herself fighting for the legal parentage of her children.

Simply put: This is an evolving area of the law. The good news is there may be some ways to avoid the possibility of this fight by having a spouse without a biological connection adopt the child.