Published On: Sat, Jun 22nd, 2019

Same-Sex Divorce: Things You Need to Know

The United States Supreme court recognized same-sex spouses back in 2015. This decision was taken with mixed reaction by different members of the society, and in the overall, it turned out to be a life changer in many couples that used to live together who were of the same sex but had not legalized their marriage.

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Some of the advantages that the legal side of view gave to the couples are that they could officially enjoy the benefits from the other couple which includes benefiting from protections that are given to the heterosexuals, tax exemptions, access to a medical cover of the principal spouse which would not have practiced before then.

Generally, 37 States have fully legalized same-sex marriage in the United States. The ones that have banned the same are 14, and 2 of the states are indifferent about the whole idea. Find more information here.

In most states, for one to qualify for a divorce, the couple must have resided in that state for a given period.

Divorce laws are the same except for a few differences here and there where they ought to know and understand before taking the step of separation.

1.      Divorce Fundamentals.

This is basically what happens around any state whereby the couples are offered a type of no-fault divorce. This means that the couples can go to court and declare they want to end their union. If this is accepted, then the judge gives orders on who should be the custodial parent and dictates on child support.

The property that the couples acquired during the time they lived together will also be divided amongst both of them during the divorce settlement process.

2.      The justification of the marriage act.

Section 2 of the Defense of marriage act, states that no state is supposed to recognize a same-sex marriage from another state. If any state banned same-sex marriage, then the couples may still be denied the divorce even if they have met all other requirements of ending a marriage as per the residency requirements.

3.      Child support and Custody.

In the unfortunate event that the couple ends the marriage where children are involved, some use the biased laws against the ex-spouse to be able to win the case. However, if they agree with the child support, then the court gives them the freedom to choose who will be the custodial parent.

In a situation where the biological parent leaves with the children, then the court, on the other hand, can refuse the other spouse to take up the custody of the children, or even the visitation. This is because in many cases, the adopted parents may not rhyme well with their adopted children, and in this case, they are generally left under the care of the biological parent.

If a child is born during the time that the same-sex couples were living together, then the court will assume that the husband is the father of the child and as such, the case will be determined in the same way as that one of the heterosexual couples.

4.      Divorce Settlement Agreements.

The pain a heterosexual couple goes through is the same pain that same-sex couples go through in marriage. In as much as they are bitter in ending their marriage, there is a need to relax and come together to agree on the way forward regarding the settlement of assets.

One of the exciting ideas, in this case, is that the court gives support through the way of mediation to provide the couples with a chance to discuss and see if they could agree on divorce settlement plans outside the courts.

If they could agree, then it becomes a less expensive procedure. However, the court still deserves a right to reject or accept the decision if there is no equitable distribution of the investments.

5.      How Domestic  Partnerships are Dissolved

There is an instance where same-sex couples came into the union by way of civil marriage in the cases where they did not have access to official marriages. If they decide to end the marriage, then they could easily revert to normal marriages since the civil unions were changed to marriages in the year 2013.

6.      Nonresident’s consideration for Divorce.

According to Completecase, some of the marriages have happened in States where the couples are nonresidents. In this case, the countries that have continued to offer same-sex marriages also offer considerations for marriage annulment to the nonresidents.

Others such as California will only accept breakups of such couples if they were legally married in California, and the court to which they attend for the filing of the case must be in the county where they married. However, for the couples to qualify, they must have stayed in California for at least six months.

Other states still allow termination of marriage so long as one of the couples resided in the state for at least nine months before they engaged in the process of dissolving their marriage.

7.      Same-sex marriage couples should also understand that they cannot remarry until the official divorce has taken place. If one gets married without making the initial marriage official, then he could be charged with bigamy.

8.      Alimony Support.

This refers to the support given to a spouse after a break-up. Same-sex divorce is a complicated case in this instance and especially if the couples have been together for some time.

For the same-sex separation, judges will evaluate and see the extent to which the spouse requires financial support and make a decision based on the inability to support him.

To be able to balance the issues of alimony, the judges in most cases only take into consideration the year that the couples were legally married and in this case, the more years one was married, the more they are subjected to an alimony payment.

9.      Since the laws relating to same-sex marriages are being embraced globally on a day to day basis, there is a window given whereby, if one was married in a state that allows same-sex marriages. In case they move to another state that still accepts the same sex, then they will be allowed to end the marriage in the same state. This is according to the emerging trends relating to same-sex marriages.

10.  Pre-nuptial arrangement

 In the lives of heterosexuals, some marriages have pre-nuptial arrangements whereby there is a prior arrangement before marriage over the ownership of the assets. In as much as same sex, marriage is still a marriage; there has not been any arrangement in terms of prenuptial that has been put to place.

However, it is crucial that couples come to think about it and determine on the way forward for prenups.

11.  Considerations made for Same-Sex Divorce.

There have been so many back and forth discussions about the laws surrounding same-sex divorce. Since this matter is now coming to a close, some of the states have either accepted or rejected the idea.

However, it’s critical that one gets conversant with the federal laws about the state they live in to ensure that you do not complicate your marriage dissolving issues if divorce is not allowed in the state you live in.

For instance, if you were not legally married in a state you live in, then breaking the marriage for such a case will be impossible unless you get back to the state where the union was established.


Since the marriage annulment law for same-sex couples has not been in practice for many years, it’s good to gather information from an attorney who is well acquitted to divorce and advice you further on the best way to handle the separation

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