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Same Sex Divorces

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With the new Supreme Court ruling, parties in a same-sex marriage should now be able to obtain a divorce in Tennessee. Most of same-sex divorces will be the same as any other divorce, except there may be extra complications due to years of living together jointly without the legal protections of marriage. For example, many couples legally merged assets prior to the marriage whereas usually pre-marital assets are held by individual parties and not both.

Things that may cause additional complications in same-sex divorces are:

Pre-marital home purchases and domestic partnerships, where does time start ticking? Will it go to the date of the marriage or will there be more leeway with co-mingling because marriage was not a legal option?

Pre-marital joint investment and banking accounts – where will the line be drawn for pre-marital individual property if everything was already held jointly just as if the parties were legally married?

Pre-marital contractual holdings done to protect the other spouse due to the fact they could not be legally married – will they alter alimony provisions?

– Complications with minor children due to only one parent being the biological parent of the minor child, for example is parentage presumed by a marriage or not? This can be complicated even further for men depending on the surrogacy agreement.  Hopefully, for couples that have children but one parent does not have legal rights to the child, the new step-parent rights legislation will preserve some rights to the child, even if custody is not feasible.

Contractual obligations agreed on prior to marriage. Will they operate as a pre-nuptial agreement or be treated completely separate?

Common law marriage – How will that come in to play for couples who have been cohabitating in open domestic partnerships for more than 10 years?

Pre-marital property and domestic partnerships. There is more to property than just a home and money. Many people buy things together that need to be sorted, such as expensive furniture or pets, so will Fido be considered pre-martial property if there is a domestic partnership, or will the person who bought the dog automatically get to keep him as pre-marital property?

It will be very important that persons dissolving a same-sex marriage have smart and creative counsel as there is no case law on the matter in Tennessee and we will need to take arguments from other cases, especially contract law, in order to ensure our clients are adequately compensated for their contributions to the relationships and not taken advantage of in the divorce process, especially with children. Some counties may also not initially recognize all these things, and all cases should be prepared and litigation in anticipation of a possible appeal by either side. This is especially true given that each county and judge has their own views and may apply what little law is available differently. A same-sex divorce in Nashville may get a different result than a same-sex divorce in Williamson County.

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Disclaimer:  This is not legal advice.  Although Attorney Morgan Smith is licensed in both Tennessee and the District of Columbia, family law is very state specific, and this information is based on Attorney Morgan Smith’s experience in Middle Tennessee, and specifically Nashville and Davidson County, Sumner County, Wilson County, Rutherford County, Williamson County, Cheatham County, and Robertson County.  If you have specific questions regarding your case, call the Law Office of Morgan Smith and Morgan will be happy to consult with you by phone at (615) 620-5848.