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Can I get a same-sex divorce in SC?
For decades, people have asked, “why can’t I get married if I’m gay or lesbian?” Now that you can get a same-sex marriage in SC and SC must recognize same-sex marriages from other states, some people are asking, “can I get a same-sex divorce in SC?”
Of course, you can. Although it is a new and developing area of family law, the right to marry necessarily includes the right to divorce. Same-sex couples now have the same rights and privileges as heterosexual couples, and the number of same-sex divorces will increase as time goes on.
What are the rules for a same-sex divorce in SC? Are the rules for division of assets, alimony, child custody, and child support the same in same-sex divorces and traditional divorces?
First, let’s take a look at the recent history of same-sex marriage in SC and the struggle that gay and lesbian couples have faced to gain recognition of their right to marry in SC.
SC’s legislature, governors, and attorneys general finally lost their long battle to prevent gay and lesbian people from marrying in 2014 – and then only because the federal courts forced SC to recognize the right to marry.
In 1996, the SC legislature passed a law defining marriage as between one man and one woman, ensuring that no gay or lesbian couple could marry in the state.
From 2005-2007, the SC legislature passed a constitutional amendment banning same-sex marriages, SC voters approved the amendment, and the legislature ratified it, making it a part of the SC Constitution.
In 2014, the Fourth Circuit Court of Appeals decided Bostic v. Rainey, holding that Virginia’s ban on same-sex marriage was unconstitutional. South Carolina and Virginia are both located in the Fourth Circuit, which means that Bostic v. Rainey was binding on South Carolina as well as every state located in the Fourth Circuit.
Despite this, SC’s Supreme Court, in response to a request from SC’s Attorney General, ordered SC judges to violate the Constitution and ignore the Fourth Circuit’s ruling by denying marriage license applications to same-sex couples.
SC Attorney General Alan Wilson also continued to litigate the case Bradacs v. Haley, where two women who were married in the District of Columbia asked the court to force SC to recognize their marriage, until November of 2014, when the federal court held that SC must recognize valid same-sex marriages from other states.
In Condon v. Haley, the federal district court in SC affirmed that a lesbian couple in SC has the right to marry. Near the end of 2014, probate courts in SC finally began to issue marriage licenses to same-sex couples. In 2015, the US Supreme Court held in Obergefell v. Hodges that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples and to recognize out-of-state same-sex marriages.
Despite the numerous court opinions holding that it is unconstitutional to deny same-sex couples the right to marry, including the US Supreme Court’s opinion in Obergefell, the SC legislature continued to unsuccessfully attempt to pass legislation denying same-sex couples the right to marry, including the “South Carolina Natural Marriage Defense Act” in 2016 and the “Marriage and Constitution Restoration Act” in 2018, neither of which passed.
If you have the right to get married, you must also have the right to get divorced. The first same-sex divorce in SC was finalized soon after SC was forced to recognize same-sex marriages – a couple who had been married in New York in 2011, became SC residents, then were forced to wait in limbo because they were no longer NY residents but could not dissolve their marriage in SC until SC recognized their marriage.
The same rules apply for a same-sex divorce and a traditional divorce in SC. For example, the same residency requirements apply, and the same rules govern which county the divorce complaint must be filed in.
Division of assets in a same-sex divorce is the same as it would be in a traditional divorce. Both parties must disclose all assets in their financial disclosures, and, if there is not an agreement before the final hearing, the Court will equitably divide the assets using the same factors that they use in opposite-sex divorces.
The same rules also apply for awarding alimony in a same-sex divorce – in a longer-term marriage where one spouse has become dependent on the other spouse’s income, the Court is more likely to award alimony. The Court may award periodic alimony, lump sum alimony, or rehabilitative alimony depending on the circumstances.
Child custody may be a more difficult issue for some same-sex parents if both parents are not recognized as the legal parent – if only one parent is recognized as the legal parent, it is much less likely that the Court will award custody of the child, or sometimes even visitation, to the second, “non-legal” parent.
This doesn’t mean that you can never get custody of the child if you are not the “legal” parent – it does mean that you will have an uphill battle and it is critical that you get a competent and experienced Myrtle Beach divorce lawyer to help you with your divorce and custody proceedings.
If both parents are “legal parents,” the Court will most likely order the non-custodial parent to pay child support. If one parent is not a legal parent, however, the Court will most likely find that the non-legal parent does not have a financial obligation to support the child.
Like child custody issues, this is a question that your divorce and child custody attorney on the Axelrod team can answer for you only after meeting with you and reviewing your case.
If you are in a same-sex marriage in SC and are considering separation or divorce, it is important that you find a SC divorce lawyer who has experience handling complex divorce cases and who is not biased against LGBTQ persons or the idea of same-sex marriage. Axelrod and Associates can help.
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