Michigan LGBT Divorce

Since the Supreme Court made same-sex marriage legal across the United States in 2015, LGBT couples in Michigan have gained the right to marry. With this right came another important legal reality: the right to divorce. Same-sex couples who decide to end their marriages now have access to the same divorce process as opposite-sex couples. However, LGBT couples may face some unique challenges during divorce that require special attention and understanding.

Michigan is a no-fault divorce state, which means couples don't need to prove anyone did anything wrong to get divorced. This makes the divorce process simpler for everyone, including LGBT couples. Understanding your rights and the potential complications that might arise can help you navigate your divorce more smoothly.

Same-Sex Marriage Rights in Michigan

The path to marriage equality in the United States took many years. Before 2015, same-sex couples could only marry in certain states, and their marriages weren't recognized everywhere. This created confusion and hardship for many families. The landmark Supreme Court case Obergefell v. Hodges changed everything on June 26, 2015, when it legalized same-sex marriage nationwide.

This historic decision meant that same-sex couples throughout Michigan and the entire country could legally marry. More importantly, it meant their marriages would be recognized with the same legal protections and benefits as opposite-sex marriages. The term "gay marriage" became outdated because marriage is now simply marriage, regardless of whether the couple is same-sex or opposite-sex.

With the right to marry came the right to divorce. Michigan law now treats same-sex divorce exactly the same as opposite-sex divorce. The same rules, procedures, and legal standards apply to everyone. However, because same-sex marriage is relatively new, some unique situations can arise that courts and lawyers are still learning to handle.

How Michigan's No-Fault Divorce Works

Michigan uses a no-fault divorce system, which simplifies the process for all couples seeking to end their marriages. Under Michigan law, you don't need to prove your spouse did something wrong or harmful to get a divorce. You simply need to state that the marriage has broken down and cannot be saved.

To file for divorce in Michigan, one spouse must state that "there has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved." This legal language essentially means the marriage is irretrievably broken.

The no-fault system benefits LGBT couples because it removes the need to air private matters in court or prove fault. This can make the divorce process less stressful and more straightforward. Both same-sex and opposite-sex couples can use this system to end their marriages with dignity.

While fault isn't required to get divorced, Michigan courts can still consider marital misconduct when making decisions about property division, spousal support, and other matters. If one spouse behaved badly during the marriage, this might influence how the judge divides assets or awards alimony.

Filing for Divorce in Michigan

The divorce process for LGBT couples follows the same steps as for any other couple in Michigan. Understanding these steps can help you prepare for what lies ahead.

Steps to File for Divorce:

• One spouse files a complaint for divorce with the county clerk and pays the filing fee
• The other spouse receives the divorce papers and has a chance to respond
• If both spouses agree on all terms, they can file for an uncontested divorce
• If they disagree on issues, they must negotiate or go to court to resolve disputes
• The court issues a final judgment of divorce that legally ends the marriage

Michigan requires a waiting period before a divorce can be finalized. For couples without minor children, the waiting period is 60 days. For couples with children under 18, the waiting period extends to six months. This gives families time to make important decisions about their future.

Property Division in LGBT Divorces

Michigan follows the principle of equitable distribution when dividing marital property during divorce. This means the court divides property fairly, though not necessarily equally. The goal is to give each spouse what is fair based on their circumstances.

Marital property includes anything acquired during the marriage, regardless of whose name appears on the title or deed. This can include homes, cars, bank accounts, retirement funds, and even debt. Property owned before the marriage or inherited during the marriage typically remains separate property.

Special Challenges for Same-Sex Couples

LGBT couples may face unique complications when dividing property. Many same-sex couples lived together as partners for years before they could legally marry. During those years, they may have bought property together, shared bank accounts, and built a life as a family. However, Michigan courts may only consider the years of legal marriage when dividing property, not the years of cohabitation before marriage.

This limitation can create unfair situations. For example, if a same-sex couple lived together for 20 years but was only legally married for 5 years, the court might only consider those 5 years when dividing property. This could significantly impact decisions about pensions, retirement accounts, and other assets that accumulated over the longer period.

Factors Courts Consider When Dividing Property:

• The length of the marriage
• Each spouse's contributions to acquiring marital property
• The standard of living during the marriage
• Each spouse's income, assets, and debts
• Each spouse's earning ability and future financial prospects
• Contributions one spouse made to the other's career or education
• Any other factors the court considers relevant

Divorce attorneys experienced with LGBT family law can help ensure courts consider the full context of your relationship, not just the years of legal marriage.

Spousal Support in Same-Sex Divorces

Spousal support, commonly called alimony, provides financial assistance from one spouse to the other after divorce. In Michigan, either spouse in a same-sex marriage can request spousal support, just as in opposite-sex marriages.

Courts don't automatically award spousal support in every divorce. The requesting spouse must show they have a financial need and that the other spouse has the ability to pay. Several factors influence whether a court will grant spousal support and how much.

Calculating Alimony for LGBT Couples

The length of the marriage plays a significant role in determining spousal support. This can be problematic for same-sex couples who were together for many years before they could legally marry. Some courts may only consider the duration of the legal marriage when calculating alimony, which could result in lower support awards.

For example, a same-sex couple might have been together for 15 years before legally marrying and then married for 5 years before divorcing. A court that only considers the 5-year marriage might award less spousal support than if it considered the full 20 years the couple was together.

This issue is still evolving in Michigan family law. Experienced divorce lawyers can argue that courts should consider the entire period of cohabitation when determining spousal support, especially if the couple functioned as a married couple during those years.

Child Custody and Support Issues

Child custody and support can be especially complex in LGBT divorces. Same-sex couples become parents through various methods, including adoption, surrogacy, sperm donation, and artificial insemination. The way a couple became parents can significantly affect their legal rights during divorce.

Biological vs. Non-Biological Parents

In Michigan, when a child is born during a marriage, both spouses are presumed to be legal parents. This presumption applies to same-sex marriages just as it does to opposite-sex marriages. However, this presumption can be challenged, which sometimes creates problems for non-biological parents.

If one spouse is the biological parent and the other is not, the non-biological parent may face difficulties securing custody or parenting time unless they legally adopted the child. Without legal adoption, a non-biological parent might not have the same legal rights as the biological parent, even if they helped raise the child from birth.

To avoid these problems, same-sex couples should have the non-biological parent legally adopt their children. This process, called second-parent adoption, gives both parents equal legal rights and protections. If both parents have legal parental rights through birth or adoption, Michigan courts will treat them equally when determining custody.

Michigan's Best Interest Factors

When same-sex parents divorce, Michigan courts use the same "best interest factors" used in all custody cases to determine what arrangement serves the child best. These factors focus on the child's wellbeing rather than the parents' preferences.

Best Interest Factors Include:

• The emotional bonds between the child and each parent
• Each parent's ability to provide love, guidance, and education
• Each parent's ability to provide food, clothing, medical care, and other necessities
• How long the child has lived in a stable environment
• The permanence of each proposed custodial home
• Each parent's moral fitness and mental and physical health
• The child's school and community ties
• The child's preference if old enough to express one
• Each parent's willingness to encourage a relationship with the other parent
• Any history of domestic violence

Courts cannot favor one parent simply because they are the biological parent. Both parents who have legal parental rights receive equal consideration.

Child Support Calculations

Child support works the same way for same-sex couples as for opposite-sex couples. Both parents have a legal obligation to support their children financially. Michigan uses a formula based on both parents' incomes, the number of children, and how much parenting time each parent has.

The parent who spends less time with the children typically pays child support to the parent with more parenting time. This helps ensure the children's needs are met in both households. The amount of support depends on each parent's income and the specific custody arrangement.

Legal Issues for LGBT Couples

Same-sex couples may encounter several unique legal situations during divorce that opposite-sex couples don't typically face. Understanding these issues ahead of time can help you prepare and protect your rights.

Domestic Partnerships and Civil Unions

Before same-sex marriage became legal, many LGBT couples entered into domestic partnerships or civil unions. Some cities, universities, and employers in Michigan allowed couples to register these relationships to receive certain benefits like health insurance coverage.

If you or your spouse registered a domestic partnership with someone else and never formally ended it, this could complicate your divorce. You should review any previous domestic partnerships or civil unions and ensure they were properly dissolved before proceeding with your divorce.

Pre-Marriage Cohabitation

Many same-sex couples lived together as committed partners for years or even decades before they could legally marry. During this time, they may have shared expenses, bought property together, raised children, and functioned as a family unit in every way except legally.

This extended period of cohabitation can create complications during divorce. While Michigan courts may only consider the period of legal marriage when dividing property or calculating spousal support, experienced divorce attorneys can argue that the full length of the relationship should be considered to achieve a fair outcome.

Estate Planning Documents

LGBT couples often created estate planning documents before they could marry to protect each other and ensure they could make medical and financial decisions for one another. These documents might include:

During your divorce, you should review all estate planning documents and update them to reflect your new circumstances. Failing to update these documents could result in your ex-spouse making decisions for you or inheriting property you intended for someone else.

Protecting Your Rights During Divorce

LGBT couples going through divorce should take specific steps to protect their legal rights and ensure fair treatment throughout the process.

Finding the Right Divorce Attorney

Working with a divorce lawyer who understands LGBT family law issues is essential. Look for an attorney who has experience handling same-sex divorces and who understands the unique challenges you may face. A knowledgeable attorney can help ensure courts consider the full context of your relationship and can advocate effectively for your rights.

Many LGBT-friendly law firms in Michigan have staff members who are part of or strong supporters of the LGBT community. These attorneys understand the discrimination and challenges same-sex couples face and are committed to achieving fair outcomes.

Documenting Your Relationship

If you lived together as a couple before legally marrying, gather documentation that proves the length and nature of your relationship. This might include:

• Lease agreements or mortgage documents showing joint residency
• Joint bank account statements
• Photos from significant events throughout your relationship
• Testimony from friends and family about your relationship
• Documents showing joint parenting of children
• Proof of shared expenses and financial contributions

This documentation can help your attorney argue that courts should consider your entire relationship, not just the period of legal marriage, when making decisions about property division and spousal support.

Protecting Your Parental Rights

If you are the non-biological parent and haven't legally adopted your children, speak with an attorney immediately about protecting your parental rights. While Michigan law presumes both spouses are legal parents of children born during the marriage, this presumption can be challenged. Legal adoption provides the strongest protection for your relationship with your children.

Alternatives to Traditional Divorce

While most LGBT couples who end their marriages choose traditional divorce, Michigan offers two alternatives that may fit certain situations.

Separate Maintenance

Separate maintenance, sometimes called legal separation, allows couples to divide property, determine child custody, and award spousal support without actually ending the marriage. At the conclusion of a separate maintenance case, the couple remains legally married.

Some people choose separate maintenance for religious reasons or to maintain certain benefits like health insurance. However, separate maintenance has significant downsides. If one spouse files for separate maintenance, the other can file a counterclaim for divorce, and the court must treat it as a divorce case.

Annulment

Annulment "cancels" a marriage as if it never existed. However, annulments are rarely available. Michigan only grants annulments in specific situations, such as when one spouse was already married to someone else, when one spouse was forced into marriage, or when one spouse was too young to legally marry.

Simply changing your mind about the marriage is not grounds for annulment. Annulments are uncommon and require specific legal circumstances to be granted.

Moving Forward After Divorce

Ending a marriage is difficult for everyone involved, regardless of sexual orientation. LGBT couples may face additional emotional challenges related to discrimination, lack of family support, or limited community resources.

Support Resources

Several organizations and resources can help LGBT individuals navigate divorce:

• LGBT community centers often provide support groups and counseling
• Mental health professionals who specialize in LGBT issues can provide therapy
• Legal aid organizations may offer free or low-cost assistance
• Online communities connect people going through similar experiences

Taking care of your emotional health during and after divorce is just as important as protecting your legal rights.

Building Your Future

While divorce marks the end of your marriage, it also represents a new beginning. Focus on creating a stable, healthy life for yourself and your children. Update all your legal documents, establish your own financial accounts, and surround yourself with supportive friends and family.

Before You File a Divorce in Michigan

Michigan LGBT divorce follows the same legal process as opposite-sex divorce, thanks to the Supreme Court's decision in Obergefell v. Hodges. Michigan is a no-fault divorce state, meaning couples can divorce without proving wrongdoing. The divorce process involves filing a complaint, negotiating or litigating disputed issues, and receiving a final judgment from the court.

However, same-sex couples may face unique challenges related to property division, spousal support, and child custody. Courts may only consider the period of legal marriage rather than the full length of the relationship, which can result in unfair outcomes. Non-biological parents may struggle to maintain relationships with their children if they haven't completed legal adoptions.

LGBT couples going through divorce should work with experienced family law attorneys who understand these unique challenges. Documenting the full history of your relationship, protecting parental rights through legal adoption, and updating estate planning documents are all important steps.

While same-sex marriage equality is now the law throughout Michigan and the United States, LGBT couples still face additional obstacles during divorce. Understanding your rights, knowing the potential complications, and working with knowledgeable professionals can help you achieve a fair outcome and move forward toward a positive future.