Collaborative Divorce

While many of the issues affecting LGBTQ+ couples are the same as those affecting opposite-sex couples, it is important to have an attorney with experience working with same-sex couples and the unique issues faced by their families during divorce.

LGBTQ+ Divorce & Child Custody

Washington State has been at the forefront of LGBTQ+ rights for many years. Same-sex marriage was legalized in Washington in 2012,  and later the federal government legalized same-sex marriage nationwide on June 26, 2015, through the landmark Supreme Court case Obergefell v. Hodges.  This historic ruling, required all states to license and recognize marriages between same-sex couples, ensuring that marriage equality became the law of the land across the United States.  LGBTQ+ married couples follow the same rules and procedures for filing for divorce as heterosexual couples.

Unmarried couples may also have certain rights to divide property that was acquired during the parties’ long-term marriage-like relationship, but there are many limitations to what the court can divide as opposed to marriages. If you are in a long-term unmarried relationship it is important to consult with an attorney experienced with same-sex unmarried couples to help you understand how these issues would be addressed in the event that the relationship ends.

LGBTQ+ Divorce Timeline

For married couples, whether the divorce is heterosexual or same-sex, the timeline can vary depending on whether it is contested or uncontested.

Uncontested Divorce

An uncontested divorce occurs when both parties agree on key issues like property division, child support, child custody, and spousal support. In this case, a settlement agreement is drafted and approved by the court after a 90-day waiting period, also known as the cooling-off period.

Contested Divorce

Contested divorces happen when the couple cannot agree on the terms of their divorce. If negotiations fail, the divorce proceeds to litigation, where the court makes the final decisions. In King County, a trial date is typically set eleven months after a Petition for Divorce is filed.

Basic Timeline

• A spouse decides to divorce and explores their options with or without legal counsel.
• A spouse files for divorce and serves the other spouse. Washington is a no-fault state. The other spouse must respond within a given period.
• The couple negotiates property distribution, child custody, child support, and spousal support, possibly reaching a settlement.
• If no settlement is reached, the case moves to court. Mediation may be required.
• At trial, the court hears testimony and issues a final judgment based on fairness.
• To settle a divorce, specific matters must be addressed and agreed upon by both spouses, including child custody, child support, alimony (spousal support), and property division.

Child Custody

Same-sex couples have the same custodial rights and financial obligations as other-sex couples if both partners have the same legal parental rights. Establishing parenting rights can be a unique challenge for some same-sex couples.

Establishing Parenting Rights in Washington

If a child is born during the marriage then the law presumes that both spouses are the parents.  In Washington, there are several ways a nonbiological spouse can become a parent. According to the law, there are a number of circumstances where the court considers both LGBTQ+ spouses to be legal parents. Establishing this is one unique challenge same-sex couples face.  It is important to consult with an attorney familiar with these issues, preferably before a child is born or before the relationship between the spouses is ending, so that the nonbiological parent can ensure s/he is given equal parental rights to the biological parent.

Adoption: Joint adoption allows both partners to have equal parental rights when they are not the biological parents of the child.

Second Parent Adoption/Co-Parent Adoption: Questions about child custody emerge if there’s only one biological parent in the relationship, despite the fact that both spouses may play equal parts in raising the child. These concerns can be avoided through a second-parent adoption.  The non-biological parent can adopt the child, ensuring equal legal rights for both partners.

Voluntary Acknowledgment of Parentage (VAP): Same-sex parents can establish parentage similar to opposite-sex couples.  This form is typically used for unmarried partners.  A Voluntary Acknowledgment of Parentage (VAP) is a legal document that allows parents to establish parentage without going to court. This process is especially significant for LGBTQ+ couples and others where the parentage might not be automatically presumed. The VAP form can be signed at the hospital at the time of the child’s birth or later.  Both parents must sign the form in the presence of a notary or a witness to ensure it is legally binding.  The form must be filed with the Washington State Department of Health to be effective.  Once signed and filed, the VAP establishes legal parentage immediately, however it can be challenged or rescinded by either parent within 60 days of signing.

Washington State Parentage Act: This act includes provisions ensuring same-sex couples have equal parental rights, presuming both spouses as legal parents of children born during the marriage. The Washington State Parentage Act presumes that both spouses are legal parents of children born during the course of a marriage. Regardless of which is the biological parent, both have equal claim to child custody in same-sex divorce. A person is presumed to be the parent of a child if they are married to the birth parent at the time of the child’s birth or within a certain time frame around the birth. This presumption applies equally to same-sex couples.

Washington law also presumes an individual is a parent if, for the first four years of the child’s life, this person lived with the child and raised it as his or her own. Essentially, acting as a parent during this time gives you a potential legal claim as a parent. This is often called a holding-out provision.

Donor Conception: A donor is not considered a parent, allowing same-sex couples to establish parentage without donor interference.  Nonetheless, it is important to ensure that this issue has been addressed and legally confirmed at the time donor conception is arranged.

Surrogacy Agreements:  These legal contracts ensure that intended parents in same-sex relationships can establish legal parentage through surrogacy.  It is especially important for couples to work with an attorney experienced with surrogacy agreements to ensure that the agreement is enforceable in court.

Child Custody in LGBTQ+ Divorces

Parenting plans and residential schedules are determined by what is best for the child, with the law applying equally to everyone. Washington’s criteria for establishing residential time parenting plans focus on the parent-child relationship, stability, and safety.  Washington case law specifically bars the trial court from discriminating against one parent solely because of his/her sexual orientation.

Child Support

Both parents are responsible for financial support. If legal adoption has taken place, both parents share financial responsibility, and child support is determined based on state guidelines.

Alimony (Spousal Support)

Same-sex spouses may be entitled to spousal support under the same conditions as heterosexual couples.

Property Division

Washington is a community property state, meaning all property and debt acquired during the marriage is subject to a fair and equitable split. This can also apply to property and debt acquired before same-sex marriage became legal, considering the committed intimate relationship.

At Lasher, we understand the complexities of navigating same-sex divorce. Every family is unique, and yours is no different. Regardless of sexual orientation or gender identity, you deserve legal representation to protect your rights. Our extensive experience in handling same-sex divorces and breakups makes us a knowledgeable and supportive ally in these challenging times.

Couples facing LGBTQ+ divorce have many questions.  The decisions you make during your divorce can continue to impact your life for many years. It is imperative that you understand your rights and educate yourself on the divorce process.  Our attorneys have many years of experience working with same-sex couples and are particularly attuned to the legal issues that they face.  Contact us today for compassionate, expert guidance tailored to your unique situation.