Same-Sex Divorce: What You Need to Know

Many same-sex spouses had difficulty getting divorced prior to the U.S. Supreme Court's 2015 ruling in Obergefell v. Hodges, which legalized same-sex marriage nationwide. Before the ruling, married same-sex couples who moved to states that didn't recognize marriage equality were generally barred from getting a divorce in those states.

While they were legally able to get divorced in the state where the marriage was performed, states typically require a certain period of residency before a divorce will be granted. This created problems, particularly for couples who had destination weddings and then returned to states that didn't recognize same-sex marriage.

Read on to learn more about the challenges often faced by same-sex couples seeking a divorce, both before and after Obergefell.

The Defense of Marriage Act

Under section 2 of the (since overturned) Defense of Marriage Act (DOMA), no state was required to recognize same-sex marriages from other states. States that didn't allow same-sex marriage could choose not to recognize same-sex marriages from other states as valid marriages. Therefore, even if a same-sex couple met the residency requirement for divorce, they could be denied a divorce if they resided in a state that didn't recognize their marriage.

States that failed to recognize same-sex marriage often refused to enforce same-sex divorce judgments against their residents as well. Court orders (including support orders) were often unenforceable across state lines if, for example, an ex-spouse moved to a state that didn't recognize same-sex marriage. But the Obergefell decision, which protects marriage equality at the federal level, also requires states to recognize valid same-sex marriages performed in other states.

Same-Sex Divorce for Non-Residents

In recognition of the challenge same-sex couples faced when seeking a divorce, many states that permitted same-sex marriage also allowed non-resident same-sex couples to divorce.

For example, California requires that at least one spouse be a resident of California for at least six months prior to filing a petition for dissolution of marriage. However, California also allows non-resident same-sex married spouses to dissolve their marriage if they married in California and neither spouse lives in the state. The couple must file for dissolution in the county in which they married.

In Illinois, generally one spouse must be a resident of the state for at least 90 days prior to the court's finding on residency. However, a same sex couple married in Illinois can get divorced in Illinois even if they have both moved out of state in the interim.

Other states that allow for non-resident same-sex divorce include Delaware, Washington D.C., Hawaii, Minnesota, and Vermont. In addition, these states allow non-resident couples to divorce there even if the couple was married in a state that recognized same-sex divorce.

In the wake of the Obergefell decision, all states must recognize that same-sex couples have a fundamental right to obtain a divorce in the state in which they reside, whichever state that may be.

Dissolution of Domestic Partnerships

Despite the Supreme Court's historic ruling, some same-sex couples may still be caught in a state of limbo if they choose to end their partnership. For instance, many same-sex couples who did not have access to marriage opted for civil unions or domestic partnerships instead.

While legally similar to marriage, not all states recognize these types of arrangements and as a result may not be able to dissolve civil unions or domestic partnerships. Couples who entered into civil unions in Delaware and Rhode Island, however, are legally considered married (civil unions in those states were converted to marriages in 2013).

It's not quite clear how state governments will respond to the sweeping changes in marriage law, including access to divorce by partners in civil unions.

Considerations for Same-Sex Divorce

After several years of fluctuating laws and status, the matter is finally settled at the federal level. But it's important to refer to your state's laws if your situation is particularly complex. Those in civil unions, for example, may need to establish residency in the state where the union was performed in order to dissolve the relationship. But if you were legally married, you may now get divorced in any state where you reside.

Getting Divorced? Make Sure You Have the Right Lawyer on Your Side

Although same-sex marriage law is largely a settled matter after Obergefell, some confusion may still remain. You can get assistance with understanding the requirements for same-sex divorce in your particular situation by contacting an experienced, local divorce attorney today and protecting your interests.