How same-sex divorce differs from regular divorce

Just because same-sex couples have fought long and hard for the right to marry doesn’t mean the marriage will be immune to arguments, infidelity, or a dying spark. It follows, then, that with same-sex marriage comes same-sex divorce. Commenting on same-sex unions, Elaine H. Nissen, an attorney, mediator, and collaborative law practitioner in New York and New Jersey says, “the United States Supreme Court has made all elements of marriage apply, so that alimony, ERISA, etc. are now all in play.” But while a same-sex married couple now has rights where benefits, inheritance, and medical decisions are concerned, some unique circumstances can make a same-sex divorce differ from a traditional one.

Identifying marital assets

While same-sex marriage is recognized legally at the federal level, there may still be some hurdles for same-sex couples, depending on the legal status of their relationship. Couples who are still in civil unions may need to establish residency in the state where the union was performed in order to officially dissolve the relationship. Same-sex couples who were legally married, however, may now divorce in any state.

One of the complications for same-sex couples arises when it’s time to establish just how long a couple has been legally bound to one another so their joint assets can be properly weighed. “Suppose a couple has been together 30 years but only married for the last two. Now they divorce. Is it a 30-year marital estate or only a two-year estate?” questions Nissen.

Meghan Freed, attorney with family law firm Freed Marcroft in Hartford, Connecticut, agrees. “The real issue is that some same-sex couples were in lengthy partnerships before they could enter into a civil union or marry, and we don’t have a mechanism for taking that into account when it comes to assets,” she says.

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How the length of your relationship is viewed when it comes to dividing assets may very well depend on the state in which you are seeking a divorce. Connecticut, for example, “does not consider assets accumulated during the pre-marriage relationship as marital assets,” Freed says. “This is significant because, when gay couples couldn’t marry, many accumulated significant assets during their cohabitation prior to marriage or civil union.”

Before the United States Supreme Court’s June 26, 2015, ruling that legalized gay marriage across the nation, five states had converted all existing civil unions to marriage: Connecticut, Delaware, New Hampshire, Rhode Island, and Vermont. While there isn’t a published case that directly addresses whether the assets accumulated under a civil union are now considered marital assets, “In our experience, judges [in Connecticut] do consider assets accumulated during the civil union to be marital assets,” says Freed.

Navigating child custody

While the financial portion of a divorce is tricky enough, when couples in a same-sex marriage have children, custody issues can make the landscape of divorce even more complicated. “Some same-sex couples had children prior to their marriage that were never formally adopted by the non-biological spouse,” says Freed. “This can lead to significant issues with parental rights and responsibilities, including child support and visitation.”

The biological connection is powerful in a court of law and, barring any solid legal ties between a child and their non-biological parent, the relationship could be severed depending on how amicable a same-sex divorce is. “What if the biological parent wants to break the bond of the other and the child?” asks Nissen. “Let’s say that the non-bio mom stayed home to care for the child, and the grandmother who is closest to the child is related to the non-legal parent?” There will be a strong argument about family contributions made by the stay-at-home parent, but when it comes to child custody and child support, the ultimate decision may not satisfy either parent.

The inconsistent divorce

Spousal support, parenting time, and the like come into play for same-sex divorce and follow the dissolution laws just like any marriage. But given the problems described above, it’s clear that same-sex couples have a responsibility to understand the legal implications of their relationship status. Marriage offers a clear demarcation line for what is included in divorce proceedings and what is not, but same-sex relationships may have an ambiguous timeline depending on the length of the relationship prior to marriage, whether or not children are involved, and if there was a civil union prior to the marriage.

Evaluating both financial and non-monetary contributions to a same-sex relationship—such as childcare and support of one spouse for another—will be difficult for the courts. Though same-sex marriage has been a long time coming, it’s still a very new part of the law. And, as such, the legalities surrounding same-sex divorce will take time to become fully formed. Until that point, inconsistency in decisions is inevitable for same-sex divorce.