Same-Sex Divorce: Everything You Need to Know

Married gay couples have the same right to get divorced as straight couples. But they might face particular complications, including issues around parental and property rights.

By , Attorney | Updated by E.A. Gjelten, Legal Editor

In 2015, the U.S. Supreme Court issued a historic decision legalizing same-sex marriage (Obergefell v. Hodges, 576 U.S. 644 (2015)). 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.

Along with the right to marry, same-sex couples now have the right to divorce in every state. Unfortunately, divorce could be a complicated and frustrating process, especially if you were together before your marriage was legal.

Divorce Basics: Filing Requirements

The basic rules and procedures for same-sex divorce are the same as for all divorces. For instance:

  • You must meet your state's residency requirements for how long you or your spouse must have lived in the state before you may file for divorce.
  • You'll need to give a legally accepted reason (or ground) for divorce. 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. Some states also fault-based divorce grounds, which means you may claim that your spouse was to blame for the end of your marriage by engaging in a certain type of misconduct, like adultery or cruelty. But filing for a fault divorce can lead to acrimonious court battles, and it's seldom worth the extra stress and cost.

Check the specific rules on filing for divorce in your state to learn about the residency requirements and grounds that will apply in your case.

Custody and Child Support Issues in Gay and Lesbian Divorce

Unfortunately, when a marriages end badly, the same people who fought for marriage equality sometimes use discriminatory parentage laws against an ex. The laws in many states still use gendered language (such as mother and father or husband and wife) in their laws on establishing a parent-child relationship. But that doesn't necessarily mean those laws don't apply to LGBTQ couples.

In another Supreme Court ruling (Pavan v. Smith, 137 S.Ct. 2075 (2017)), the high court extended the Obergefell decision to other benefits of marriage, including parentage. That means that adoption by married same-sex couples is now legal in all U.S. states. It may also mean that the wives of mothers who have a child during the marriage through assisted reproduction will be considered the child's other parent.

In what's known as the "paternity presumption," state laws have traditionally provided that a man who was married to the mother of a child born during the marriage is presumed to be the child's father. In the wake of Supreme Court decisions in Obergefell and Pavan, courts in several states have held that the presumption also applies to the wife of a mother who had a child during the marriage using assisted reproduction.

For example, a Texas appellate court shot down a woman's argument that she shouldn't have been ordered to pay support for the child that her ex-wife had conceived during the marriage using artificial insemination, because she wasn't biologically related to the child and wasn't the biological mother's husband. (Treto v. Treto, 622 S.W.3d 937 (Tex. App. 2020).) Other state courts have applied the same logic when birth mothers tried to deny custody rights to their ex-wives. (See, for instance, McLaughlin v. Jones, 401 P.3d 492 (Ariz. Sup. Ct. 2017).)

Property Division in Gay Divorces

In every divorce, gay or straight, a judge will divide a couple's marital property and debts between the spouses.Generally, any property or other assets that spouses earned or acquired during the marriage is marital property—although there are exceptions. (Learn more about the difference between marital and separate property.)

For same-sex couples who were living together and sharing their lives before marriage became legal, this rule could lead to an unfair property division. For example, what if your partner bought a camper with a tax refund before you were married (because you didn't have the option)? Under the normal rules in a divorce, the camper would be considered separate property belonging solely to your spouse. In most states, judges have the authority to decide on any way of dividing a couple's property that's fair. So some judges might recognize the unfairness of this situation and split the value of the camper between you and your spouse. But there's no guarantee that you'll walk away from the marriage with anything your spouse bought before you were legally married.

Spousal Support Issues in Same-Sex Divorces

Alimony (also called spousal support or maintenance) is another issue that can get complicated in LGBT divorces when couples lived together for many years before the laws allowed them to marry legally.

Gay spouses may be entitled to alimony (also known as spousal support or maintenance) when they get divorced, under the same rules that apply to heterosexual divorces. Generally, the longer the marriage, the more likely it is that a judge will award spousal support to a spouse who needs it, as long as the other spouse has the ability to pay. And some state laws apply different rules for awarding alimony in long-term marriages.

But what if your relationship lasted much longer than your marriage? It's not easy to predict the outcome in any particular case, because judges have a lot of leeway in making decisions about spousal support. Some judges will add the additional unmarried years to the length of the legal marriage before deciding spousal support. Others might not consider any relationship outside of a legal marriage. As a general rule, state laws allow judges to consider any circumstances that they consider relevant to the issue of alimony. But, as some courts have held, that doesn't mean that a couple's lengthy premarital cohabitation requires a finding that they had a long-term marriage. (For example, see Matter of Munson, 146 A.3d 153 (N.H. Sup. Ct. 2016).)

In some states, such as California, a spouse may ask the judge to award "palimony" (financial support for unmarried partners), based on the years the couple spent living together before they legally married.

Settlement Agreements

Judges have the authority to make decisions about child custody, support, and property division in divorce, but only you know what's best for your situation. You can avoid the uncertainties of how a judge will rule in your case—and lower the cost of divorce—by working with your spouse to reach a marital settlement agreement. And if you can agree about all the issues before you file for divorce, you can take advantage of all the time and cost savings involved in an uncontested divorce.

If you're having trouble working out a complete agreement, a mediator may be able to help. In divorce mediation, a neutral professional will meet with you and your spouse to guide you through the process of identifying the issues and coming up with solutions that will work for both of you.

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