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Does same-sex divorce differ from opposite-sex divorce?

Same-sex marriage rights are still new across the U.S. In Arizona, same-sex couples have only been legally allowed to get married or have out-of-state marriages recognized for three years. As states adjust to these rights being upheld, their laws need to be updated to comply with Obergefell v. Hodges.

With the right to get married also comes the right to get divorced. How do these divorces differ from those of opposite-sex couples?

In Arizona, divorces should not differ much. Arizona is a “no-fault” divorce state, so couples simply need to give the reason that the marriage is “irretrievably broken.” This is the legal way of saying the marriage can’t be repaired.

However, some of the statutes in Arizona still mention “husband and wife” or define marriage as between a man and woman, and the courts have had to make decisions to reconcile those statutes with Obergefell v. Hodges.

Inconsistent to deny benefits to same-sex couples

The Arizona Supreme Court did this earlier in 2017 when it ruled that a lesbian woman who was divorcing her spouse was entitled to equal parental rights under the U.S. Constitution. The case stemmed from an artificial insemination law, which assumes the man in a marriage is the father of a child born within 10 months of marriage. That law did not establish rights for the non-biological parent of the same sex, however.

Arizona Chief Justice Scott Bales wrote in his opinion that, "It would be inconsistent with Obergefell to conclude that same-sex couples can legally marry but states can then deny them the same benefits of marriage afforded opposite-sex couples." 

The court ruling also suggested that the state laws that are inconsistent with Obergefell will need to be rewritten to avoid case-by-case litigation. As these laws are being rewritten, same-sex couples looking for advice on how to handle their divorces can talk to an experienced family law attorney to keep up with the changes and how they apply to individual divorces.

The end result, hopefully, is that Arizona law wording will soon match federal requirements and state marriages and divorces will be treated equally.

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