Same-Sex Divorce: What You Need to Know

Now that President Joe Biden has signed the Respect for Marriage Act, all states recognize same-sex marriage, even if same-sex marriage is not legal in every state. 

The Respect for Marriage Act gives the same protection as the U.S. Supreme Court's 2015 ruling in Obergefell v. Hodges.

The same marriage laws cover same-sex couples and heterosexual couples. They must go through the same divorce process and property division. Before Obergefell, the hodgepodge of laws in the U.S. meant that same-sex couples faced difficulties with divorce. If they had moved to a state that lacked marriage equality, family laws in those states could not handle their dissolution.

Now that the laws protect the rights of all couples to wed and separate, most of these issues are gone. The only difficulties facing same-sex couples in divorce are the ones that all married couples face. There are still some obstacles that heterosexual couples don't face.

This article reviews the history of same-sex marriage and divorce and the new challenges of same-sex dissolution.

DOMA Down, Respect Up

The Supreme Court ruling in Obergefell overturned the Defense of Marriage Act (DOMA). DOMA's key provisions included denying federal benefits such as pensions to same-sex couples and allowing states to refuse to acknowledge same-sex marriages from other states. After a series of court cases challenging the constitutionality of these provisions, then-President George W. Bush called for an amendment that would have established denying same-sex marriage rights as an exception to the Constitution's Full Faith and Credit Clause.

While DOMA was in effect, some states created a compromise solution. Civil unions or domestic partnerships had the same rights and benefits under state laws as marriage. Domestic partnerships were only valid within the state that granted them.

Obergefell did not create any affirmative rights. That is, states were not required to allow same-sex marriages. States had to grant same-sex marriages from other states the same rights as opposite-sex marriages from other states. All couples had the same rights to state and federal benefits (such as retirement and pension plans) regardless of who they married.

The Respect for Marriage Act codified Obergefell but gave no affirmative rights. It does not require any state to allow same-sex marriage. States may refuse to issue same-sex marriage licenses if they choose. The act protects interracial marriage as well as same-sex marriage.

Challenges for Same-Sex Spouses

Now that LGBTQ partners can marry and have their marriage recognized in all states, they can get divorced there, too. In most cases, they have the same issues that every other couple faces: dividing marital property, child custody and visitation, child support, and alimony or spousal maintenance. None of these differ from any heterosexual divorce.

There may be some unique issues for same-sex couples when talking with divorce lawyers.

Duration of the marriage. For heterosexual couples, a marriage begins on the marriage certificate date. Gay marriage went through some interesting hurdles before becoming fully legal. For instance, same-sex marriage was legal in California from June through November 2008, then not permitted until 2013, when the Ninth Circuit overturned Prop 8. Couples who could have married during that window waited for fear of becoming "unmarried" if the law passed.

In most cases, cohabitation is not relevant for community property division. Few states recognize common-law marriage. But, under these circumstances, a couple that could have wed, held themselves out as married, and considered themselves married might be married for divorce purposes. The courts have yet to give any definitive guidance on this question.

Parental rights. Although the laws are changing, in many states, a child's parents are the ones whose names appear on the birth certificate. For same-sex partners, parental rights must be spelled out in writing to avoid later issues. Parentage is still an issue with some courts handling same-sex couples.

Court decisions will always err on the child's side, and as with marital duration, there is very little guidance on the best course of action. Couples should always get legal advice when seeking a divorce when children are involved.

Residency Requirements, Civil Unions, and Other Matters

Before Obergefell and the Respect for Marriage Act, some states amended their laws to let non-resident same-sex couples more easily divorce if their home states did not recognize their marriage. As long as the marriage took place in the state, the couple could return for divorce without meeting the residency requirement. These changes only applied to couples whose home state did not recognize their marriage.

These states included:

With Obergefell, same-sex couples can divorce in their state of residency, wherever possible.

Civil unions and domestic partnerships have a more complex history. Some states, such as Delaware and Rhode Island, converted all civil unions to civil marriages in 2013. Colorado, Illinois, and Vermont still recognize civil unions.

Nine states still have domestic partnerships. Both same-sex and opposite-sex couples can enter domestic partnerships in these states. They are:

  • California
  • District of Columbia (D.C.)
  • Hawaii (also recognizes civil unions)
  • Maine
  • Nevada
  • New Jersey (also recognizes civil unions)
  • Oregon
  • Washington
  • Wisconsin

Some states allow the dissolution of domestic partnerships like an uncontested divorce. The partners only need to file a Notice of Termination and divide their assets. In other states, the procedure resembles divorce. People who need to sever a domestic partnership should consult a family law attorney before making any changes to their relationship.

Unfortunately, both Obergefell and the Respect for Marriage Act were silent on transgender rights and transgender marital status. Although the LGBT community seeks guidance on this issue, the courts have remained silent.

When It's Time for a Same-Sex Divorce

The same-sex marriage question is settled at the federal level. Your divorce case is a state issue. When it comes to civil unions, child support, and property division questions, you need a local divorce attorney who knows your state laws. They can answer your questions and handle everything correctly.

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