How Does Divorce Law Apply to Same-Sex Marriages in the United States?

Same sex marriages and divorceFor many same-sex couples across the country, the dream of one day wedding their partners was realized when individual states started legalizing gay marriage. Even more couples celebrated when the U.S. Supreme Court overturned the Defense of Marriage Act.

But the honeymoon has to end sometime. And many same-sex couples are starting to consider what approximately half of all married couples eventually face: Breaking up.

Divorce among heterosexual couples has an established process with a history of precedents and case law to guide individual’s actions. For same-sex couples, the rules aren’t so cut and dry.

In some cases, the law prohibits same-sex couples from ending a marriage or civil union.

The difficulties of divorce

In fact, divorce isn’t even a legal option for many same-sex bonds. Couples that want to go their separate ways may have to consider terminating their domestic partnership.

Couples that are legally married have to contend with:

  • still-emerging federal agency rules that are in various stages of development
  • regulations in the state where they reside, and
  • if they were married in another state, the rules and regulations of that state.

A state-by-state issue

Individual state regulations covering ending same-sex partnerships are at least as complicated and diverse as those covering same-sex marriage.

Your best bet is to carefully study the laws in the states that affect you and your partner. Then, consult a family law attorney with experience working within the regulations of your state.

On the Federal level

Individual federal agencies have taken steps to broaden the rights of same-sex couples who are married or in domestic partnership. These are major steps forward in terms of improving quality of life for same-sex couples.

But they further complicate the issue of terminating a partnership, especially for couples living in one of the 37 states that still haven’t legalized gay marriage.

The state where you reside vs. where you got married

People who were married in a state other than where they reside who now want to get divorced have an extra level of complications in the process. Many states have residency requirements to file for divorce.

To make matters worse, many states refuse to recognize same-sex marriages from other states. Somewhat ironically, that means these states don’t honor same-sex divorces, either.

Steps to take

Same Sex CoupleWhatever specific situation you’re in, it’s essential you talk to a family law expert and make a plan to take some kind of action.

Here’s why: As the political landscape changes, couples that choose to stay legally married or partnered may actually find themselves gaining more rights and being more entangled in each others lives.

Here are a few points to discuss with a family law attorney with experience handling same-sex marriages in your state:

  • The cost of a same-sex divorce. Terminating a same-sex marriage of a partnership can be two or three times as expensive as a heterosexual divorce. Even in states with policies designed to ease the process for same-sex couples, much of this is uncharted legal territory, which means it’s likely to be more expensive.
  • The value of a pre-nup. If you want to divorce your partner, chances are it’s too late to debate the finer points of a prenuptial agreement. But it’s important to look at any established plans (including prenuptial agreements) that could impact your divorce or termination.
  • More extreme measures. In some cases, one half of a same-sex marriage or partnership may be forced to move to another state in order to complete the divorce or termination. In some states, the best way to sever a partnership is to declare that the marriage or civil union was never valid to begin with. As much as possible, discuss these more-extreme solutions with your partner, and don’t be surprised if a family law attorney suggests them as a last-ditch solution to a complicated, evolving problem.


About the Author: Charlie A. Mayville is the Marketing Manager for Maselli Warren. Maselli Warren has several experienced New Jersey divorce attorneys who regularly represent clients in family law issues.

Images: Imgur via Marco Togni


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