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Differing laws create confusion over same-sex divorce, custody

Same-sex marriage is now legal in six states and the District of Columbia. Ohio is not one of those states, which can create situations for local same-sex couples that are difficult to deal with, largely in the legal realm. Sometimes, a child custody agreement can even become torn apart by the fact that the legal parents of a child are of the same sex.

One female couple, ages 25 and 28, were recently married in a state where it is legal to marry, but now reside in a state where legislation has banned gay marriage. The new couple will have to deal with issues stemming from federal taxes, inheritance, health benefits, real estate, state pensions, wrongful death litigation, divorce, health care and child custody. When divorce and custody come into the picture, it can quickly become messy. Since the Constitution and many states do not allow same-sex marriage, many states will not allow same-sex couples to divorce.

This puts a wrench in the system when courts are pressed to decide custody and support arrangements, which are also muddled by varying legislation. In regards to child custody, some states give legal parental rights to a married couple no matter who the biological father is. In a state where gay marriage is legal, this would likely be the case for a same-sex couple as well.

However, as soon as that couple leaves the state, the non-biological parent risks losing his or her custodial rights to the child, which could eliminate any sort of visitation rights, unless the biological parent agrees to it One way to get around this is by making sure that the non-biological parent has adopted the child, creating a legal tie to the child that will be recognized by the courts.

Source: Tampa Bay Times, "St. Petersburg women find love, marriage - and legal tangles," Stephen Nohlgren, Nov. 26, 2011

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