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Same-sex divorce has unique issues

On Behalf of | Sep 14, 2022 | Family Law

Legal recognition of same-sex marriage was overdue when the U.S. Supreme Court issued its landmark decision in 2015. Even though divorce laws apply to all married couples, same-sex couples should be aware of certain matters if they ever face divorce.

Before recognition

Same-sex marriage had different legal status among the states until the Supreme Court’s recognition of these marriages. Previously, there were many family law complications for same-sex spouses undergoing divorce.

Before marriage equality was accepted, couples who lived in states that did not recognize same-sex marriages were rarely permitted to get divorces. Couples who went to states that recognized same-sex marriages also faced difficulties obtaining a divorce. These states usually had a six-month residency requirement for divorce eligibility.


 Now that same-sex marriage is recognized, couples are treated the same as heterosexual couples when they end their marriage. But there are still obstacles.

Couples who were together for many years but had a legally recognized marriage for only a few years are treated as being together for that shorter period for purposes of dividing property and assets. This may mean that their assets and debt acquired during their marriage are subject to division.

But assets and debt accumulated before their legal marriage may be exempt even if the couple was in a long-term relationship. Because of this problem, prenuptial, postnuptial or cohabitation agreements are important to assure a fair property division.

Child custody

 Same-sex divorce can complicate child custody matters that were traditionally based on a framework of a heterosexual couple’s relationship. Child custody matters depend on possessing biological or adoptive parent rights. Having neither right complicates a spouse’s ability to seek parental rights and custody during divorce.

In some states, it is difficult for a nonbiological parent to establish a legal relationship with the child. Or a judge may decide that a biological mother should receive primary custody because she carried the child or took more parental leave.

For these reasons, it is important that both parents establish a legally binding parental right to their children as soon as possible.

Attorneys experienced with same-sex divorces can help assure that spouses overcome these obstacles. They can assist spouses with seeking a fair and reasonable divorce decree.