LGBTQ+ Guide to Divorce and Separation

Marriage between same-sex couples looks far different today than it did even a decade ago. Right now, federal law recognizes and protects same-sex marriage, but laws continue to be in flux, and individual state jurisdictions regulate family laws, including marriage and divorce. 

Depending on the state you live in, these laws can affect your ability to divorce, separate, get child support or custody, and other matters that may impact you as an LGBTQ+ couple. Because most laws are written around traditional heterosexual relationships, gay couples who want to divorce can encounter complications.

Common reasons for LGBTQ+ divorce and separation

While research suggests that same-sex couples experience more happiness and harmony in marriage than their heterosexual counterparts, LGBTQ+ couples have unique challenges that can eventually lead to divorce or separation. 

• Societal issues: Even though same-sex couples have legal rights to be together, that hasn’t removed the societal discrimination that still exists. This stress can affect the mental and physical health of the individuals as well as the health of their relationship.
• Family issues: Many LGBTQ+ individuals experience families that aren’t accepting of who they are and who they marry. This can put a great deal of emotional stress on their marriage.
• Financial issues: Same-sex couples who marry must face the realities of sharing a financial life after many years of being financially independent. 
• Children: Like other-sex marriages, the introduction of children into the relationship can expose very different parenting styles and values. 

How to file for LGBTQ+ divorce or separation in your state

For LGBTQ+ married couples, the rules and procedures for filing for divorce will be the same as for heterosexual couples, but individual laws and procedures vary by state. The same holds true for couples in common-law marriages, civil unions, and domestic partnerships.

Each state has its own divorce eligibility requirements for the following:

• Residency 
• Separation 
• Procedure to file
• Service of process
• Grounds
• Waiting periods
• Property distribution (community property vs. equitable distribution)
• Child custody
• Child support
• Spousal support (alimony)

Same-sex couples will need to check their own jurisdiction to understand the state’s eligibility requirements to file for divorce. 

LGBTQ+ divorce timeline

Whether it is a heterosexual or same-sex divorce, timelines vary depending on whether it is contested or uncontested. 

An uncontested divorce is one where both parties agree on important matters concerning their divorce such as property division, child support, child custody, and spousal support. In this situation, a settlement agreement can be drafted, and the court will approve it unless it finds something questionable. 

Contested divorces are those where the couple can’t reach a mutual agreement about the terms of their divorce. If negotiation between spouses isn’t successful, a divorce will move on to the litigation phase, where the court makes the final decisions for them.

Generally, a divorce will follow this basic timeline:

1.  A couple decides to divorce and explores their options with or without legal counsel.
2.  One party files for divorce based on at-fault grounds or irreconcilable differences (no-fault) and serves the other spouse. The other spouse must then respond within a given period of time. 
3.  The couple may work together to negotiate fair property distribution, child custody, child support, and spousal support and come to a settlement. 
4.  If a settlement can’t be negotiated, the matter moves to the court for litigation. The court may require the couple to go through mediation in an attempt to resolve their differences first. 
5.  The court listens to testimony from both parties, their lawyers, and witnesses. It will then make a decision and issue a final judgment based on what it considers fair.

Whether a couple agrees to solutions on their own or relies on attorneys and judges to work out their differences, a divorce can take months to years. The longer the process, the more expensive the divorce.

Common settlement issues

In order for a divorce to be considered “settled,” specific matters must be addressed and agreed upon by both spouses. These matters include child custody, child support, alimony (or spousal support), and property division.

Child custody

Same-sex couples have the same custodial rights and financial obligations as other-sex couples if both partners have the same legal parental rights. When both same-sex parents have equal parental rights through adoption, child custody is considered by the court in the same way as a heterosexual divorce. 

But both partners can’t be biological parents of a child in a same-sex marriage. Depending on the state, without the benefit of legal adoption, the non-biological parent may find that they have few parental rights in a custody matter, even with a binding donor agreement. Although it’s possible to seek parental rights through the court, states and individual courts vary in how open they are to granting custody arrangements to non-biological parents. 

Child support

Both parents are responsible for the financial support of their children in a heterosexual divorce, but in a same-sex marriage, it depends on the legal parental rights of each partner. If legal adoption has taken place, parents share responsibility for the financial upbringing of the child, and child support will be determined based on the child support guidelines of that state. 

Like custody matters, states and courts differ in how they view a non-biological parent’s financial responsibilities toward a child in an LGBTQ+ divorce. Depending on the state, financial support may not be the responsibility of the non-biological parent, sometimes leaving the biological parent to shoulder the full financial impact of bringing up the child after a divorce.

Alimony (spousal support)

While same-sex spouses may be entitled to spousal support under the same conditions as a heterosexual couple, this can become complicated when weighed under individual state laws. 

Some states apply larger alimony awards to partners based on the length of their marriage. But at this point in time, same-sex couples don’t have the benefit of marital longevity. While the court may consider the entire relationship when deciding to award alimony, it will look different depending on the state’s laws and even the court itself. 

Property division

States vary in how property is divided by a married couple, whether that couple is other-sex or LGBTQ+. A community property state considers all property and debt acquired during the marriage as community property subject to a 50/50 split in a divorce. An equitable distribution state takes a more nuanced approach to marital property and debt division and considers many factors when making an “equitable” decision. In both cases, property owned by either spouse before marriage is considered separate property and retained by that spouse. 

Notably, this property division can be unfair to couples who cohabitated before same-sex marriage became legal. If purchases were made or debt is taken on by one partner before they legally become spouses, that property or debt is retained by that spouse in a divorce. In most states, the court has the authority to determine if that property division is fair, but there are no guarantees. 

The benefits of mediation

Despite the headway made by legalizing same-sex marriage, the rights of same-sex partners lag behind in many ways. Until there is broader societal acceptance and legislation catches up, LGBTQ+ couples navigating divorce may benefit from professional mediation rather than relying on the court system. 

The purpose of mediation is to broker an agreement between couples with the help of a skilled, unbiased mediator who represents neither partner. A good mediator helps both partners communicate their concerns and brings them closer to a resolution that works for both instead of relying on the court to make these decisions. 

At Hello Divorce, we understand the complexities of navigating same-sex divorce in a legal environment where many LGBTQ+ rights still lag behind. Finding a resolution outside the court system has countless benefits for same-sex unions. Schedule a free 15-minute call with us to find out if our legal services could help you navigate your divorce in a fairer, less adversarial way.