Ask A Lawyer: Lesbian Marriage And Maintenance

Question:

After being married for 28 years, my wife chose to leave me for another woman. She and her lover are now living together and consider themselves to be "married" to each other even though the marriage is not legal in our state. I myself did have an affair 26 years ago but we got past it and remained married for all of these years. Although neither of us were particularly happy in the marriage and did not have a sexual relationship for many years, the introduction of her new lover is the reason that I have filed for divorce.

My wife does not work and did not work throughout most of our marriage. Her new "spouse" is supporting her and has been since they began living together more than 6 months ago. I did pay out half of the equity on our home to my wife at the time that she indicated she was leaving. She is now asking for a substantial amount of maintenance for life. I know that she would not be entitled if she were remarried to a man, but what happens since she is "married" to a woman?

 

Answer: 

You’re right; it is highly likely that the maintenance issue would be off the table if she were living with a man who was paying her expenses and financially supporting her life in general.  There is definitely an argument to be made that you should not be obligated to support your wife when someone else has assumed that responsibility.  If they have been doing this for six months, and evidence can be provided showing that they have a marriage like relationship, then you definitely have an equitable argument that she is not entitled to maintenance when she is now supported by another individual. 

What you have to prepare for is her argument.  She will surely argue that there is no marriage-like relationship.  She’ll probably argue that she and this other woman are friends and that out of kindness her friend has helped her during this difficult time, and they do not have plans to continue the current financial arrangement. 

Your biggest task will be providing evidence of the marriage-like relationship and building your case to show that she is “married.”  It’s important that you consult an attorney who can research the case law in your state as this is the type of situation that can be greatly supported by what the courts have said in similar situations.

 

Claudia J. Weaver is an Associate Attorney with Cordell & Cordell, P.C., in Overland Park, Kansas. Ms. Weaver practices exclusively in the area of domestic relations.

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