Same-sex Divorce

Marriage equality still has a long way to go, and same-sex couples often bear the brunt of this.

In the past, only a few states allowed same-sex couples to wed.

Most same-sex couples would head to states where marriage was permitted and have their weddings there. Destination weddings were common as they granted couples what they could not get in their resident states.

However, if the marriage did not work out as planned, couples would often face a dead end.

For one, before the Obergefell v. Hodges ruling in 2015, same-sex marriage was not legally recognized in all states. Couples could wed in some states but requesting divorce petitions was a challenge.

After all, how could they legally terminate a contract that the law did not uphold?

Secondly, couples had to go to the states where they tied the knot to get a divorce.

Unfortunately, most of them had conducted destination weddings.

Most states require that you prove residency for a minimum period to request a divorce. In most cases, couples have to have 180 days of residence to go through with the divorce. With these requirements, couples found themselves in quite the conundrum.

Luckily, after the Obergefell v. Hodges ruling in 2015, the situation became much better. However, that is not to say that everything is now standard and easy to follow. We will review the challenges same-sex couples have faced in the past and the present day.

The Defense of Marriage Act

Before the Obergefell v. Hodges ruling in 2015, same-sex couples had to deal with section 2 of the Defense of Marriage Act (DOMA).

According to it, states that did not uphold same-sex marriages had the right to refuse same-sex divorces.

The courts could fail to recognize the marriages as valid and refuse to grant same-sex couples a divorce.

Under this section, as much as a couple may have wed in a state that recognized same-sex marriages, other states did not have to honor the contract.

Couples who resided in states that enforced DOMA often found themselves caught between a rock and a hard place. Even if they met residency requirements in their states, they still could not access divorce papers.

They had to go to the states where they had wedded, and even there, they had to meet residency requirements. It got even worse if the couple had separated and lived in states on each side of the DOMA.

On one side, a state could accept the divorce and start the paperwork.

But if the state on the other side did not recognize same-sex marriage, the court orders from the first state were not enforceable.

Following the Obergefell v. Hodges ruling in 2015, all states had to recognize same-sex marriage. Per this precedence, it does not matter where the couple weds. As long as they have the marriage certificate, every state must recognize the marriage.

Same-sex Divorce for Non-residents

Seeing as same-sex couples had a hard time getting divorced, courts in some states implemented measures to help them out. California, for example, required that at least one spouse be a resident for six months.

The residency would be valid if it was at least six months before filing for divorce.

Alternatively, the couple could file for divorce in the county where they got married. Many couples had used California as a destination wedding point and benefitted from this move.

Illinois also eased the process by cutting the residency period to 90 days for one spouse. If none of the parties were residents, they could also file for divorce in the courts. However, this was only possible if the couple resided in a state where the courts did not recognize same-sex marriages. Vermont, Delaware, and Minnesota are some of the other states that also implemented friendly measures.

The Obergefell v. Hodges ruling in 2015 was a relief as it put an end to the loops required to get a divorce. Same-sex couples can now get a divorce from any state as long as they meet the statutory requirements.

Dissolution of Domestic Partnerships

At the time when same-sex marriage was not recognized, many same-sex couples opted for civil unions or domestic partnerships.

These arrangements are highly similar to marriage, with one caveat- not all states recognize them

Getting out of a domestic partnership still comes with a big gray area. Some states recognize them as marriages and can allow couples access to divorce. Those that don’t recognize domestic partnerships as marriages cannot dissolve such partnerships, leaving the couples in limbo.

Even with the Obergefell v. Hodges ruling in 2015, statutory governments are unclear on how they will handle domestic partnerships. It remains to be seen what will happen in the coming years.

Considerations for Same-sex Divorce

Your way forward depends on where you live and how you got married.

For example, you may need to establish your state residency if you are in a civil union. It will bring you one step closer to getting your divorce. However, for same-sex couples who are legally married, divorce can take place in any state. Even so, you have to meet the statutory requirements.

The laws keep changing, and you may need to check with the courts what applies to you.

For complex cases, involving a lawyer to help interpret the law may be necessary.

Divorce Basics

As you go your separate ways, you will need to determine how you will share your property and handle custody and alimony issues. The outcome also lies in the divorce approach you use.

No-fault divorces allow you to get divorced without telling the court why. You can cite an irretrievable breakdown in the marriage.

Fault divorces, on the other hand, will enable you to detail the reason for divorce. Examples include adultery and physical abuse. A fault divorce can help you get a better settlement, but it also takes more time and costs more money.

Division of Property

A court can follow two property division strategies – community property division or equitable distribution.

Community property states, e.g., Idaho and Arizona, consider assets and debts as community or separate property. What married people own together is considered community property, and what a spouse owns by themselves is separate property. During the divorce, courts often divide community property using a 50-50 basis. Separate property, on the other hand, remains untouched.

Equitable distribution states divide assets and debts incurred during the marriage using a fair basis. It may not necessarily be equal, and the percentage of assets awarded to each spouse depends on the evidence presented before the court.

Unfortunately, same-sex couples that got married before the Obergefell ruling cannot always cite separate property. They may find themselves dividing even what they individually owned before formalizing their marriages. You need to figure out what is the likely outcome as you seek a divorce.

Custody and Child Support

Given the gray areas in same-sex marriages, couples often find themselves battling it out over children.

Your spouse may have an unfair advantage over you if they are the child’s biological or adoptive parent.

Parentage laws would work in their favor, especially if you got married before the Obergefell ruling. You might end up not getting any parental rights to your children even if you raised them as your own. As long as the court does not consider you a legal parent, you may suffer the short end of the stick.

There is a need to develop laws to cater to all parties in same-sex marriages. As things stand now, it’s going to be hard for you to adopt children your spouse adopted before the Obergefell ruling. However, you can always check with your state and see what you can do to better your chances.


Spousal support can be complex in same-sex marriages.

Some couples have been together as partners for a long time but never gotten married. In their case, palimony is the best approach. A judge bases their decision based on the years spent living together.

Other couples have been legally married since the Obergefell ruling. In this case, a judge will use precedence as a basis.

The lower-earning or non-earning spouse can get spousal support after the divorce.

The other category is a couple that was together before the Obergefell ruling as partners. Following the verdict, they got married legally. In some cases, a court may consider the unmarried years and add them to the legal marriage period. Some courts may only count the married years.

It’s hard to tell what will apply to your case. However, leaning on precedence can help you gauge possible outcomes.

Settlement Agreements

The laws are far from being clear on same-sex divorces.

To save yourself the hassle of navigating these murky litigation waters, you can try alternative dispute resolution.

Mediation, for example, can help you and your spouse agree on what’s best for your family. You can discuss children, property, and spousal support on a level ground.

Unless you cannot agree on the best way forward through neutral parties, litigation is not the best option for you at this time.

Leave a Comment