In 2015, the United States Supreme Court issued a historic decision legalizing same-sex marriage. For many, this decision was life-changing and—from a legal perspective—meant that married couples could benefit from a spouse’s health care plan, tax exemptions, and any other protections offered to heterosexual married couples.
Before this ruling, at least 13 states still banned same-sex marriage. But if a couple lived in one of those states, they could travel to marry in a country or state that offered same-sex marriage. But these couples that wed abroad soon realized they would face a difficult legal battle in their home state if they wanted a divorce, especially if the state didn’t recognize the marriage. Fortunately, along with the right to marry, couples now have the right to divorce in every state.
If you and your spouse don’t have multiple registrations for domestic partnership or civil unions, or you were married after marriage equality became law, you can file for divorce in your state as long you meet the residency requirement, which means you must be a resident of that state before you may file for divorce there. Each state has different rules, but most require spouses to live in the state for 6 months before filing for divorce. It’s important that you understand your state’s specific laws.
Unfortunately, for many couples, divorce will be a complicated and frustrating process, especially if you were together before your marriage was legal.
Every state offers some type of no-fault divorce, which means that you don’t need to tell a court why your marriage is over, just that neither spouse wants to remain married. In addition to no-fault divorce, some states offer a fault-based process, which means you can use your spouse’s marital misconduct—like adultery or abandonment—as your reason for divorce.
During both divorce processes, a judge will divide marital property, decide issues of custody and child support, and determine if spousal support is appropriate.
In every divorce, a judge will divide a couple’s marital property and debts between the spouses. For same-sex couples who were living together before marriage became legal, the date of the marriage may create an unfair property settlement between spouses.
For example, in Michigan, a judge will divide the marital couple’s property equitably—or, fairly—between each spouse. Marital property is anything acquired by either spouse during the marriage, but what happens if you weren’t legally married (because you didn’t have the option) when your spouse bought the camper with a tax refund?
In situations where one party bought the property before the marriage, the court may categorize it as separate property, which is immune from property division and normally awarded to the spouse that purchased the item. Some courts recognize that discriminatory laws restricted couples from getting legally married, so a judge may split the value of the camper. However, property division is based on a judge’s discretion (and state-specific factors), so there’s no guarantee that you’ll be walking away from your relationship with anything your spouse purchased before the date of your wedding.
Unfortunately, when a relationship ends badly, the same people who fought for marriage equality may use discriminatory parentage laws against an ex-spouse. This is especially common in custody battles involving same-sex couples. If you can work together to create a parenting plan with your spouse, you could avoid a tumultuous legal battle over the children.
Many couples decided to start a family prior to marriage equality, and without a legally recognized relationship, most found it almost impossible to adopt a spouse’s biological children. If the other parent never legally adopted the children, the courts in most states won’t award any parental rights, including visitation, to the non-biological parent. In cases where the couple decides to have and raise the child together, this can be devastating to the other parent.
Because marriage equality is so new, it’s impossible to predict how all courts in every jurisdiction will handle custody cases where a child was born to one spouse during a same-sex marriage. In heterosexual marriages, if a child is born during the marriage, the court presumes the husband is the father. Ideally, the court would make the same presumption in same-sex cases, but the outcomes may vary depending on the state.
The issue of spousal support—or, alimony—becomes complicated in same-sex relationships if a couple was together for many years before the laws allowed them to legally marry. Judges usually award alimony to a spouse if there’s a financial need and ability to pay, but will use discretion and a variety of factors before deciding.
Generally, the longer the marriage, the more likely it is that a judge will award spousal support to a lower-earning or non-earning spouse. But what happens if the laws didn’t allow you to get married, but your relationship lasted for a decade? Because this is uncharted territory, and courts are just now starting to see these cases, it’s difficult to know what a court will do in every situation. In some states, the court will add the additional unmarried years to the end of the legal marriage before deciding spousal support. In others, judges won’t consider any relationship outside of a legal marriage. And in some states, such as California, the supported spouse may ask the court to award "palimony," which is financial support for unmarried partners. The claim for palimony would be based on the years the couple spent living together before they legally married.
One of the best ways to deal with divorce is to work with your spouse to settle the entire divorce outside of court. Many courts offer a service to couples called mediation, which is a voluntary process that allows both spouses to discuss what they want out of the divorce. Judges have the authority to decide property division, custody, and support issues, but only the couple knows what’s best for their family situation. Creating a settlement agreement is the easiest and least expensive method for keeping control in your divorce.