Rhode Island Legalizes Same-Sex Marriage — and Divorce

When same-sex marriage became legal in Rhode Island on August 1, 2013, so did same-sex divorce. Although same-sex couples have the same legal protections now as heterosexual couples, they do confront special concerns during divorce.

One gay couple married in Massachusetts in 2008 before moving to Rhode Island. They separated in 2011 but could not divorce legally in Rhode Island. To divorce in Massachusetts, one of the spouses would have had to reside there for at least one year. They lived in limbo in Rhode Island until August 1.

Same-sex couples who are considering flying into Rhode Island now for a “quickie” wedding should realize that there is no “quickie” divorce option. Rhode Island also has a one-year residency requirement for divorces.

As very little case law exists to guide courts through same-sex divorce issues, issues couples face include:

• Property division. Sorting out what is “mine, yours or ours” gets very complicated. Same-sex couples who marry after having been together for many years often bring significant assets into their marriage. Property acquired during marriage is divided equitably in Rhode Island divorce but property acquired before the marriage is not. Property used for the benefit of the marriage or shared with the other spouse, even if it started out as separate property, may be considered marital property. Non-marital property that was not jointly held or commingled with other marital assets does not get divided.
• Child custody. In heterosexual marriage, both parents tend to be the child’s biological parents. For same-sex couples, only one spouse is the biological parent. Therefore, to establish parental rights, the non-biological parent must adopt the child. Non-biological parents who did not legally adopt their children risk losing custody through divorce. If it is true that courts favor the mother, what happens in situations with two mothers?

The knowledgeable and experienced family law attorneys at Kirshenbaum Law Associates guide same-sex couples through the complications of divorce, helping them to protect their new rights.