No two families will ever be handled in the same way because the circumstances in each case differs. While some families can reasonably hash out the terms of an agreement, not every family works like this. With that said, same-sex couples divorce at the half the rate that opposite-sex couples divorce. Same-sex couples had a divorce rate at 1.1 percent, while the rate with opposite-sex couples was ranked at 2 percent each year.
What to Know About Same-Sex Divorces
Like with opposite-sex couples, divorce will happen in much the same way. Many of the same rules will still apply to them. Nevertheless, you do have special issues for gay divorce within the United States. The duration of the relationship becomes one of the more difficult aspects. For example, because of how they had previously made it illegal, many courts struggle to identify if the co-habitation period from before should be considered as part of this.
To give another example, some same-sex couples have been together for over 25 years before they made it legal for them to marry. They look at this for the purposes of alimony. In addition, equitable distribution of property will matter as well.
The other problem that exists comes from tax problems. The supreme court ruled against the Federal Defense of Marriage Act and even called it unconstitutional, but issues continue to persist despite these things. Property distribution and spousal maintenance can become a complicated and tricky legal field that requires special attention. For property transfers, they could be subject to federal income tax. Same-sex couples also cannot deduct maintenance or alimony payments like how opposite-sex couples can do.
Difficult Residency Requirements
In some cases, the requirements for residency can be difficult in cases with a divorce. They may even experience some problems when they enter into something like this because of some of the difficulties associated with it. For example, let’s say that the relationship ends while the two are living outside of the state that they were married in. The majority of states will require that one or both of the people have to remain in that state for at least a month before they can file for divorce. You do have some states willing to dissolve same-sex marriages and civil unions from other states. Washington State is one of the examples of this.
The other difficulty with these cases can come from dividing up a retirement plan because they don’t always allow this. It poses a unique challenge for same-sex divorces. Some of the issues come from how they don’t always have access to the other person’s pension or retirement account, and things like this can make it difficult to discern how to proceed.
Whether an opposite-sex marriage or a same-sex marriage, it can be hard on children. They no longer side as much with mothers even in cases with same-sex marriages, and this can make it more difficult for someone to even see their child. When the two parents battle it out and can’t decide on how to do joint custody, the court uses several factors to make a decision that include:
Each of these factors can have an impact on the final decision of the divorce.
When people go through a same-sex divorce, they would be wise if they were to hire a lawyer who specializes in this field of law. While you have plenty of things that are the same with opposite-sex marriages, you have other issues unique to same-sex divorces, and a lawyer who specializes in this field of law will be the best equipped to help you. The lawyer that you choose will determine how things proceed, and it can have a big impact on the outcome. You need to choose someone that you trust who can protect your legal rights.
Divorces are never fun, or easy, but what happens if one spouse dies before the divorce is final? The easiest part of that to answer is that the remaining spouse becomes a widow or widower, not a divorcee. A divorce cannot be finalized after the death of one of the parties.
As far as the deceased spouse’s estate goes, however, there are multiple factors to be considered. Let’s go through some of the different scenarios. Remember, though, that the laws governing the estates of decedents are different from state to state, so you will want to consult with an attorney right away to find out what you are entitled to, and what you must do to claim it.
The simplest items will always be non probate items. These are accounts like life insurance policies, retirement savings, etc. which have a named beneficiary. These items will always go to the person named as the beneficiary.
If there is a will, the terms of the will almost always will dictate how the decedent’s assets are divided. Chances are that the decedent will not have changed their will since filing for the divorce, since it was not final.
If, by some chance, the decedent did in fact change their will to exempt their spouse before their death, it does not generally mean that the spouse will receive nothing. Most states allow a separated spouse to claim an elective share of the estate when the divorce was not final. The amount varies, usually between one third to one half of the assets. Again, this is something that varies from state to state, and you should always consult with an attorney to be sure you’re following the correct procedure.
If the decedent died without creating a will, then the estate will be handled by the local probate court. The court will oversee all proceedings in the estate, deciding how assets are to be divided. If the decedent had no children, the surviving spouse will inherit the entire estate. If there are children, generally the assets are divided into equal shares for the spouse and each child.
In some states, once a divorce is filed, the family court will retain jurisdiction over the estate once one spouse dies instead of turning it over to the probate court. In these cases, the assets are divided the way they would have been in the divorce proceedings, and then the remaining assets are passed on to the probate court to be divided amongst any remaining heirs. If there are no remaining heirs, the whole estate will go to the surviving spouse.
As you can see, the plain and simple answer to the question is no, a divorce cannot be finalized after the death of one of the spouses. What it means for the estate and any assets involved, however, is influenced by a multitude of different factors. The best way to proceed would be to contact a lawyer specializing in family law who can review the case and begin filing all of the necessary paperwork to secure any inheritance as soon as possible. Time is of the essence when dealing with estate law.
Custody, visitation and child support can be ordered in a divorce, or when a child’s parents were never married to each other. The courts take many things into consideration when deciding these matters, and sometimes the decision they make isn’t the one you wanted. You may be wondering: can I appeal the custody order?
The answer to that is: possibly. There are many factors to consider before trying to appeal a custody order.
Did the court make a mistake?
While the decision may seem unfair, and perhaps it even is unfair, fairness is not a reason to appeal the order. If you’re going to appeal a custody order, you must be able to prove that the court made a mistake when making their decision. What would constitute a mistake?
Mistake about the facts – If they deem an unimportant fact to be more important than it is, or an important fact to not be important.
Mistake about the law – If the court didn’t understand the law or applied it incorrectly, this would be a mistake.
In addition to the court having made a mistake, you also must have objected to that mistake in court, in order to file an appeal. This means you had to tell the court, while the case was happening, that you thought they were making a mistake. If you didn’t do that, you can’t appeal.
Do you have standing?
Only the petitioner, respondent, or their lawyers, can file an appeal. A grandparent, aunt, uncle, or family friend cannot file an appeal.
In addition, the order must be final. There are special circumstances in which you can appeal an order that is not final, but generally speaking, you must wait until the case is finished and there are no more court dates to file an appeal.
Was the order made on default?
If the order was made on default, technically, you would not appeal the order. Instead, you would move to vacate the order, and if that is denied, you would then appeal that denial.
When was the order made?
You have 30 days from the day the order was served to file an appeal (this may not be the same as the date that the court made the order). If it has been more than 30 days since you were served the order, then you cannot appeal. This is why it’s important to move quickly if you plan to appeal. You should order transcripts from the case as soon as possible.
It’s also important to remember that if you had a lawyer, your lawyer has to file the appeal for you. If you didn’t have a lawyer, you can still hire one to help you with the appeal.
Time is of the essence in filing an appeal for a custody order. Don’t delay or you may find that it’s too late. If you’re still not sure, you should contact a lawyer today to find out. A lawyer can also help you get the appropriate paperwork as well as fill it out properly and deliver it to the appropriate parties to make sure that your appeal is handled as quickly and smoothly as possible.
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