Now that same-sex marriage is legal, obviously followed by this is we now have a same-sex divorce. Are the terms and conditions any different? For the most part, the answer is no. At least from a legal standpoint. However, from a logistical one, there are a number of issues.
Believe it or not, Arizona’s statutes are pretty progressive. With the exception of a few (including reference to “restoration of maiden name” and numerous places where the word “wife” is used), most use verbiage that is applicable to all situations. So other than getting a little creative to use the applicable pronouns, we’re in good shape with divorce forms. At least when it comes to divorce without children. However, the forms are a little bit more complicated when it comes to a divorce with children.
While the laws in Arizona regarding children in divorce are generally gender-neutral, the forms aren’t. So it’s more than a few places where the term “wife” has to be replaced. As the court forms and forms, you find on the internet use the words “Mother” and “Father” throughout. And to be honest, no one has yet stated what the preferable terms should be.
Some have discussed using the terms “Petitioner” and Respondent”. Which works fine in the divorce, but at a later date when one party petitions the court to modify something, that will be confusing. Some say to use “Parent 1” and “Parent 2”, but personally I think that’s offensive. And still confusing, as it’s easy to forget who is 1 and who is 2. But that’s the court’s problem. Unlike the court and many other web-based programs offering divorce assistance, I don’t use “fill-in-the-blank” forms. So I’m not just going through basic forms, checking off “Mother” or “Father”. Rather, on my forms, I can actually type in the person’s name. Yet another reason why custom forms offered by my firm are better than those “fill-in-the-blank” forms out there. And also another example of how divorce isn’t “one-size-fits-all”.
Although a same-sex divorce with children can present a myriad of other issues, not those just logistical. Obviously both parents cannot be the biological parents. And laws regarding parental rights are being created literally as I type this. And constantly changing. At this point, we strongly recommend if you are considering divorce and you are a same-sex parent – even if you and your spouse are in total agreement – that you consult an attorney. This doesn’t mean you need to hire an attorney, but simply you should find out about the applicable laws. And each parent’s rights in the event the matter should become contested.