An Overview of the Law on Same-Sex Divorce Cases


In recent years, there has been a significant amount of discussion and debate surrounding the issue of same-sex marriage. As society has become more accepting of this lifestyle, the number of couples getting married has increased exponentially. Since gay marriage is still not recognized in every state, however, there are several unique challenges that these couples face when it comes to divorce.

So, what does the law say about same-sex divorce cases? Let’s take a look.

1. Gender-neutrality

In most jurisdictions, the laws governing divorce are gender-neutral. This means that the same rules and procedures apply to both heterosexual and homosexual couples. The only exception is in states that do not recognize same-sex marriage. In these states, homosexual couples are not able to get married and, as a result, are not able to get divorced.

couple asking legal advice

Many same-sex couples are surprised to learn that the law does not always treat them the same as heterosexual couples. For example, in some states, a married couple must be residents for a specific time before filing for divorce. But, in other states, this requirement does not exist for heterosexual couples. So, a gay couple who moves to a new state may not be able to get divorced right away.

The process for obtaining a divorce is generally the same for all couples, regardless of sexual orientation. Couples must first file a petition for divorce with the court and then go through asset division, child custody determination, and spousal support calculation. Once these issues have been resolved, the court will issue a divorce decree, officially dissolving the marriage.

2. Child custody

If a same-sex couple has children, the issue of child custody can be a bit more complicated. Since many states do not recognize same-sex marriage, there are often no legal precedents for awarding child custody in these cases. As a result, many judges have a great deal of discretion when making a same-sex child custody determination.

In most cases, the court will seek to award joint custody to both parents. This means that the child will live with both parents, and both parents will have equal decision-making power regarding the child’s upbringing. In some cases, however, the court may find that one parent is better suited to primary custody and award sole custody to that parent.

If you are a same-sex couple with children, it is important to seek the guidance of an experienced family law attorney who can help you navigate the complexities of the child custody determination process. They will be familiar with the law in your jurisdiction and can help you understand your rights and options.

3. Property division

The issue of property division can be one of the most contentious aspects of any divorce, and same-sex couples are no exception. In many cases, gay couples have been together for years and have accumulated significant property. When it comes time to divide this property, there can be a lot of disagreement.

In most jurisdictions, the property is divided equitably, meaning that the court will attempt to divide the property fairly. This typically means the property will be divided equally between the two spouses. However, in some cases, the court may find an equal division unfair and may award a larger share of the property to one spouse. It would be best if you spoke to an attorney to learn more about how property is divided in your jurisdiction.

4. Alimony

Depending on the marriage’s length and the couple’s financial circumstances, alimony may be awarded in a same-sex divorce case. Alimony is typically only awarded in cases where one spouse has a much higher income than the other and would be unable to maintain their standard of living after the divorce.

But in a same-sex divorce, the issue of alimony can be even more complex. This is because, in many cases, one spouse may have been out of the workforce for a significant period of time to care for the couple’s children. As a result, this spouse may have a much lower income than the other.

The law on same-sex divorce cases is still evolving and can be complex. If you are considering a divorce from your same-sex partner, you should speak to an experienced family law attorney who can help you understand the law in your jurisdiction and protect your rights. Always remember, however, that every case is unique and the outcome of your case will depend on the specific facts and circumstances involved. With the help of a knowledgeable attorney, you can ensure that your rights are protected and that you receive a fair outcome in your divorce case.

Share on:

About the Author

Scroll to Top
Scroll to Top