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.

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: 

Founder, CEO & Certified Family Law Specialist
Mediation, Divorce Strategy, Divorce Insights, Legal Insights
After over a decade of experience as a Certified Family Law Specialist, Mediator and law firm owner, Erin was fed up with the inefficient and adversarial “divorce corp” industry and set out to transform how consumers navigate divorce - starting with the legal process. By automating the court bureaucracy and integrating expert support along the way, Hello Divorce levels the playing field between spouses so that they can sort things out fairly and avoid missteps. Her access to justice work has been recognized by the legal industry and beyond, with awards and recognition from the likes of Women Founders Network, TechCrunch, Vice, Forbes, American Bar Association and the Pro Bono Leadership award from Congresswoman Barbara Lee. Erin lives in California with her husband and two children, and is famously terrible at board games.