Nolo's Essential Guide to Divorce - Emily Doskow [13]
Divorce: Typical Tabs
Divorce for Same-Sex Couples
California and Massachusetts are the only states that currently allow same-sex couples to marry, but they're not the only states that allow same-sex couples to divorce. In Connecticut, New Hampshire, New Jersey, Oregon, and Vermont, same-sex couples who have registered as domestic partners or entered into civil unions must use the same forms and procedures as married couples to end their legal relationship. All the same rules about custody, property, and support will apply. Of course, the same is true for married same-sex couples in California and Massachusetts, as well as registered domestic partners in California.
However, because the federal government does not recognize any kind of same-sex unions, divorcing can be more complicated for same-sex couples than for opposite-sex married folks; tax issues are particularly challenging. Same-sex couples seeking divorce need to contact experienced lawyers for advice. If you and your partner are in agreement or can reach agreement through mediation-about how to divide your property and share time with your kids, you may be able to use one of the do-it-yourself methods described in Chapter 3, but you should consult a lawyer before going forward, to make sure you're not missing anything.
Property, Custody, and Support
Every divorcing couple must consider how property and debts will be divided, and whether one spouse will pay spousal support to the other. If you have kids, you'll also need to make decisions about child custody, visitation, and support. You and your spouse will either need to work out these three big issues or turn them over to a judge to decide.
Divvying Up Property
"Marital property" is the collection of assets you and your spouse have gathered during your marriage, including money, real estate, investments, pension plans, and so on. Marital debts are obligations you took on together during your married life. Both the property and the debts belong to both of you, and part of the divorce process will be to divide them up between you.
Assets or debts that either of you had before your marriage, or that you acquired after the permanent separation, are called separate property or debts. Generally, each of you will keep your separate property and be responsible for your separate debts, but in some states separate property can be divided at divorce.
If you and your spouse can agree on how to divide your property, the court will simply approve your agreement. If you can't agree, the court will divide things for you. A few states use "community property" rules, and divide marital property equally. The rest use a system of "equitable distribution," to divide property in a way that the court thinks is fair, but that isn't always equal. Chapters 9 and 10 explain how states divide property and discuss the decisions you'll need to make about your assets and debts.
What Happens to the Children?
Divorce is stressful for everyone, but when you have children, the stakes are higher, and you are responsible for protecting these most vulnerable participants in the divorce process. There are three entire chapters about kids later in the book.
You and your spouse will need to decide whether you'll share custody of your children equally, or whether one parent will be the primary custodial parent. "Custody" means both the right to have a child live with you (physical custody) and to make decisions about the child's welfare and education (legal custody).
A parent who doesn't have physical custody of the kids is usually given visitation rights. If one parent has both legal and physical custody and the other has fairly limited visitation, the primary custodial parent has "sole custody." `Joint custody," which is more common, means