4 Tips for Same Sex Divorces That Also Apply to Heterosexual Couples
Since that momentous Supreme Court decision in June 2015, same-sex marriages are now recognized as legal marriages in all 50 states. This decision resulted in hundreds of thousands of LGBTQ+ couples (finally!) being afforded the same rights and responsibilities as their heterosexual counterparts. In fact, the U.S. Census Bureau estimated the number of same-sex marriages in the United States at nearly 570,000 in 2019.
But with an increase in same-sex marriages, there's also (naturally) an increase in same-sex divorces. At Hello Divorce, we've helped hundreds of same-sex couples navigate their divorces in a kinder, less messy way. There are definitely some extra hurdles, though. Here are some of our top tips for LGBTQ+ spouses who are contemplating divorce:
Triple-check which divorce forms you need
Depending on when you were married, or if you entered into a civil union before same-sex marriage was legally recognized, your state may require a different or additional form. For instance, Colorado has separate divorce forms for the dissolution of a civil union. Check your local court website or self-help center to determine which forms you will need.
Remember, if you had a civil union and then got married, you usually have to dissolve both with the court.
You might be entitled to spousal Social Security benefits (even if you get a divorce)
Did you know that you might be able to collect spousal benefits through your spouse's Social Security when you hit retirement age, even if you get divorced? This can be a vital lifeline for spouses who are divorcing close to retirement.
In general, spouses must have been married for 10 or more years to qualify (and there may be a few more requirements in your particular state, too). This could be tricky for same-sex couples whose marriages were not federally legally recognized until 2015 but who were married in a state (like California) that did recognize LGBTQ+ marriages before 2015.
Your marriage date might affect how your assets are divided in divorce
In any divorce, judges typically use your marriage date to figure out how to divide your assets (and whether the asset is marital property to be split between spouses, or separate, individual property). With same-sex marriage, asset division can be a bit more complicated. For instance, the judge may have the discretion to rule an asset as marital property if the couple was in a domestic partnership or civil union before same-sex marriage was legalized in all states.
Make sure you understand your rights as a parent
Same-sex partners may have added complications if one parent did not legally adopt the children prior to divorce, including a chance that the court might not recognize their legal right as a parent. This issue can come up in opposite-sex marriages as well, when a stepparent may have no legal rights to parenting time with their stepchildren after divorce.
FAQs
Are divorce laws different for same-sex couples?
No. Same-sex couples follow the same divorce laws as opposite-sex couples. Property division, custody, and support are decided under the same rules, though unique challenges can arise with parentage and older legal documents.
What unique issues affect custody in same-sex divorces?
Custody can be more complicated if only one spouse is the biological or legally recognized parent. Courts usually require legal adoption or a parentage judgment to secure equal parental rights.
How is property division handled in a same-sex divorce?
Community property or equitable distribution rules apply. Couples together long before marriage equality may face disputes about assets acquired before they could legally marry.
Can spousal support be awarded in same-sex divorces?
Yes. Spousal support is based on the same factors as opposite-sex divorces, such as income, length of marriage, and earning capacity.
What legal steps help protect LGBTQ+ parents in divorce?
Second-parent adoption, a parentage judgment, or a written parenting agreement can secure parental rights and reduce disputes.
Do same-sex couples face challenges with federal benefits?
Yes. Federal benefits like Social Security sometimes base eligibility on marriage length, which can disadvantage couples who were together before marriage was legally recognized.
How to Navigate a Same-Sex Divorce
Confirm eligibility and residency
Check your state’s residency rules and ensure you are legally married. Some states also require dissolving domestic partnerships.
Gather marriage and financial records
Collect your marriage certificate, partnership documents, bank statements, and property records to establish what is marital property.
Secure parental rights
If you are not the biological parent, confirm adoption or parentage paperwork. Without it, consult a lawyer to protect your rights.
Prepare custody and parenting plans
Draft a schedule covering time-sharing, decision-making, holidays, and dispute resolution to keep things clear.
Evaluate property and support
Classify assets as marital or separate. Apply state laws for division and request support if needed.
File and serve divorce paperwork
Submit the petition to court and serve your spouse, including custody, property, and support requests.
Use mediation or court to finalize
If no agreement is reached, mediation or trial will decide. Obtain a signed judgment to make all orders enforceable.
Can you imagine raising your children with your spouse only to be told that you don't have rights to the children after divorce due to a legal technicality? It seems unfathomable, but it happens. If you find yourself in a similar situation, speak with a legal coach in your area to understand your rights.
If you are thinking about divorce, you don't have to go through this alone. We have options to help you and loads of resources to guide you through the process.
Here are a few of our favorites:
