Same sex marriage has finally become possible in Arizona, after the landmark Oberfell vs. Hodges Supreme Court ruling in 2015. Arizona’s prior definition of marriage as “between a man and a woman” was struck down by the courts as unconstitutional. In another two cases, U.S. District Court Judge John Sedgewick gave favorable ruling recognizing rights of same sex couples as the same as rights of heterosexual couples.
While this is all good news for the LGBTQ community in the state, not all marriages survive, and that includes same sex marriages. Some marriages inevitably end in divorces. If you are seeking to divorce your same sex spouse in Arizona, you can discuss legal options with our firm.
In September 2017 the Arizona Supreme Court handed down its landmark ruling in McLaughlin v. Jones which now mandates that same sex female co-parents be granted identical legal and custodial rights in a divorce between a same sex female couple.
Rights of Divorcing Same Sex Couples
In Arizona, same sex couples now have the same rights as heterosexual couples when divorcing. The separating couple will also have the same obligations when dividing property and paying alimony or child support. Child custody will be determined the same as in the case of hetero couples, with priority given to the child’s health and wellbeing. It no longer matters which Mother “carried the baby to term” when allocating rights to both Mothers in a divorce. This is a significant shift in the legal landscape as of late 2017.
Arizona’s residency requirement applies to same sex couples just like any other couple. At least one party of the divorcing couple must have resided in the state for 90 days at least before filing the divorce papers. This can be a somewhat difficult requirement to fulfill for same sex couples who may have recently moved. Because federal law now recognizes same sex marriage in all 50 states, you will have to check with your local divorce attorney on the jurisdictional time limits in your state.
Grounds for Divorce
Arizona does not require couples in non-covenant marriages to provide any grounds for divorce when filing a case. As same sex couples fall into this category, the only ground required is that the marriage is irretrievably broken. One spouse can successfully claim so even if the other doesn’t want to divorce. In case either one of the spouses wants to live apart, it’s possible to file for a legal separation as well. Some people pursue legal separation so that they can remain on each other’s health insurance after the fact.
Determining child custody in a contentious divorce can be as difficult for a same sex couple as it is for any couple. Because of the 2017 McLaughlin decision, the requirements, rules, and the family law that apply to hetero couples apply equally to same sex couples. As always, it’s strongly recommended for the couple to resolve custody disputes amicably with the aid of a mediator if possible. It’s best to negotiate shared parenting time in advance with the help of lawyers instead of going to battle in front of a judge.
Same sex couples in Arizona have no reason to believe that a divorce case will be handled much differently than divorce cases for heterosexual couples. If the divorce is particularly contentious, then getting advice from an experienced attorney will be a must. You will have to consult with a family law expert to learn more about child custody.