Same-Sex Divorce & Legal Concerns

In 2015, the Supreme Court ruled in Obergefell v. Hodges that same-sex couples have a fundamental right to marry under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. This ruling also had implications for same-sex divorce. Prior to the ruling, states that permitted same-sex marriage also permitted same-sex divorce. However, it could be difficult for couples married in one state to obtain divorces in states that did not recognize same-sex marriage.

Moreover, most states require at least one spouse to maintain residency within a state before a divorce will be granted. The residency may need to last anywhere from six months to two years in most cases. Many states do not have a residency requirement to get married, however. This means that a couple could travel for a few days to another state to get married, but would not necessarily be able to get divorced in the same fashion.

With the Obergefell ruling, all states must issue marriage licenses and grant divorces to same-sex couples in the same way that they grant them to opposite-sex couples. However, the grounds for divorce and the residency requirements for divorce differ from state to state for all couples. For example, some states only allow no-fault divorces, while others offer divorces on the basis of fault, such as adultery. Like opposite-sex spouses, same-sex spouses must meet their state’s requirements for divorce in order to obtain one.

Issues Arising During Same-Sex Divorce

While same-sex divorce is now more legally straightforward, courts often need to resolve numerous issues during divorces. These issues include property distribution, child custody, child support, and spousal support. What may be difficult is determining when the marriage officially started for purposes of determining these issues, and whether the length of the marriage should be calculated retroactively to include time that elapsed before the Obergefell ruling.

For example, in community property states, a couple’s property is either marital property or separate property. Generally speaking, marital property starts accruing when the marriage starts and is divided 50-50 upon divorce. But some same-sex couples utilized domestic partnerships because same-sex marriage wasn’t available yet, and then got married once it was available. If they divorce now, courts may reach different conclusions about when the marital estate began to accrue.

In some states, common law marriage is available, and the marriage is considered to start based on when the couple passes the cohabitation requirements for common law marriage even though they didn’t have an official marriage ceremony. Courts may reach different conclusions about how to divide property upon divorce in those cases as well.

When determining property distribution, the court may also consider factors such as how much each couple contributed financially to the marriage and what property has been kept separate or commingled.

Similarly, the length of the marriage may be a factor in whether spousal support is awarded, how much is awarded, and how long one spouse will have to pay a more dependent spouse. This calculation may be more complicated in the context of same-sex marriages due to differences in how courts determine the length of the marriage.

In many states, the court’s primary consideration in determining child custody and visitation during divorce proceedings is what would be in the best interest of the child. Many states assume that a child benefits from continuing to have a relationship with both parents. However, it may be more complicated for courts to determine custody arrangements in the context of same-sex couples getting a divorce.

When both parents in a same-sex marriage have the same legal status with regard to a child due to second parent adoption or a parentage judgment, ensuring that the child continues to have a relationship with both parents will likely be among the foremost considerations for the court in the same the way it is when opposite-sex parents divorce. However, this area of law is still developing, and even courts within a particular state may reach different outcomes until appellate precedent is set.

In cases where non-biological parents have not formally adopted a child or obtained a parentage judgment, they may not have equal rights or any rights with respect to custody or visitation. By the same token, a non-biological parent that has not formally adopted a child also may not be ordered to pay child support.

Last reviewed September 2023