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Divorce poses special hurdles for same-sex couples

Achieving New Mexico equal rights to marriage sometimes poses special problems for same-sex couples undergoing divorce since they were afforded equal marital rights. Divorce mediation may be the process to overcome these obstacles.

In 2015, the Supreme Court ruled that every state must recognize same-sex marriages. Tax benefits, access to employee benefits, medical decisions and all legal rights in heterosexual marriages now apply to same-sex unions.

Decisions are not always consistent. Some courts will consider the time that the couple cohabitated and add that to the time they were legally married. Other proof, such as a joint bank account, is not always persuasive for judges.

This has consequences over many issues, such as property division and when property was owned by a spouse before or after marriage. Because alimony is often based on the length of the marriage, selecting a period may be disputed over whether spousal support will be paid to a lower-earning spouse.

This also plays a role in child custody issues. When a child was born to or adopted by one of the spouses, that spouse may have full legal parental rights even if both spouses raised the child.

Mediation may help expedite resolution of these thorny issues if both spouses are inclined to cooperate on negotiating divorce issues without going to court. The couple is they can play a role and achieve self-determination on resolving matters. This is better than leaving the decision to a judge which may be unacceptable but mandatory.

Mediators will use New Mexico law as guidance with helping to fashion an agreement. However, the process encourages creativity to help assure that both spouses are treated fairly and that they may reach an agreement that meets their needs.

An attorney can help assure that spouses can assert their rights while seeking a reasonable and equitable divorce decree. They can also provide guidance to parties undergoing mediation.

Source: CNBC, "Same-sex divorce poses complications for some splitting couples," Sarah O'Brien, Nov. 10, 2017

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