Same-sex marriage has been legal in Arizona since 2014 and throughout the U.S. since 2015. With this legal recognition, spouses in a same-sex marriage have the same legal prerogatives that heterosexual couples have, and these include divorce.
An LGBTQ divorce in Arizona follows the exact same procedure as “traditional” divorce. The divorcing spouses tackle the same issues, such as property division and spousal support (alimony). However, a same-sex couple may encounter unique challenges during their divorce process. Here is an overview.
Same-Sex Divorce Process in Arizona
The divorce process for LGBTQ couples in Arizona is the same as that of heterosexual couples:
- One spouse files a petition for Dissolution of Marriage, then officially serves the papers to the other spouse.
- The other spouse files their official response. If they agree to all the terms in the petition, the two parties can sign an agreement then submit it to the court for the final divorce decree. If the spouses disagree on any of the divorce matters, they may attempt to resolve their dispute, such as through mediation. Once they reach common ground, they can present their written agreement to the court for finalization.
- If the two parties cannot reach a resolution, the divorce may go to trial. A judge will decide on the contested issues after hearing both sides.
Issues to Tackle in LGBTQ Divorce
Like heterosexual couples, an LGBTQ couple will need to address certain matters during divorce, including the division of assets and debts and spousal support or alimony. Most of these issues are resolvable through negotiation, but there are some matters where the nature of a same-sex marriage might be a significant factor. In particular, issues around child custody (and consequently, child support) would need careful analysis.
Child Custody and Paternity in LGBTQ Divorce
In a child custody case, Arizona law is gender-neutral, meaning the sex or gender of the parents does not matter. Both parents have equal footing to claim custody or parenting time (visitation) with their child.
However, one hurdle that an LGBTQ parent may face is the legal parentage of the child. At the moment, Arizona allows only one mother and one father to be named on a birth certificate, potentially leading to paternity questions in a same-sex divorce case. More challenges may arise if the child was conceived through third-party reproductive methods such as using donor sperm, donor egg, donor embryo, or in vitro fertilization.
One key rule in Arizona paternity is that a person is presumed to be the “father” of a child if that person was married to the mother during the child’s birth or 10 months preceding the child’s birth. Even though the law uses the gendered term “father,” it can apply to any parent regardless of gender. In fact, this rule factors heavily into same-sex marriages where only one spouse conceives and gives birth to their child.
An example is the case of McLaughin v. Jones (2016), where a divorcing lesbian couple had had a child via artificial insemination of one of the spouses. The court ruled that because the non-conceiving spouse was married to the conceiving spouse at the time of conception, the non-conceiving spouse was the presumed “father” of the child in the eyes of the law. Thus, the non-conceiving spouse had a right to claim child custody during divorce.
Adoption and Child Custody in AZ Same-Sex Divorce
LGBTQ parents can now jointly adopt a child in AZ, but this wasn’t always so. One highly debated Arizona statute (A.R.S. § 8-103) specifies that joint adoption is allowed for “husband and wife,” creating confusion for same-sex adoptions and child custody.
One example is the case of Doty-Perez v. Doty-Perez (2016), where a lesbian couple with four adopted children was divorcing. The court decided that because same-sex joint adoption was not legal back when the couple had adopted their kids, only one spouse was the legal adoptive parent of those children. As a result, the non-adoptive spouse had no legal parenting rights to the children upon the couple’s divorce.
In a case like this, the non-adoptive parent needs to pursue their own adoption of the children in a process called Step-parent Adoption. The kids are essentially adopted twice – once by each parent. This way, both parents could have equal opportunity to claim child custody in the event of divorce.
Call a LGBTQ Divorce Lawyer in Arizona
Same-sex divorce in Arizona can be complex. In addition to the emotional nature of divorce, the confusing and changing laws around this issue can make it difficult to grasp. Let a skilled divorce attorney help you navigate this legal maze towards favorable results for you and your loved ones.
Call the top-rated divorce attorneys at Goldman Law. We are experienced in untangling the legal knots in marriage dissolution and keep updated on legal changes affecting LGBTQ marriage, divorce, and adoption. Talk to us about your situation. Call (602) 698-5520 or use our contact form for a consultation.