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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 that may not be moving as quickly as some may like.

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.

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