Basics of the Same-Sex Divorce

In 2015, LGBT marriage became possible in all 50 states of the United States. Before that time, only 37 states allowed this kind of legal union, and the rest were eligible to refuse to recognize the same-sex marriage according to the Defense of Marriage Act. Nowadays, same-sex couples can get married anywhere across the country. However, while LGBT marriage law is all the same, the procedures for same-sex divorces are different in each state. Therefore, if you decided to end your marriage, it is important to understand which steps to take and what to be aware of in the process.

What Is a Same-Sex Divorce?

Same-sex divorce is a termination of a civil marriage between people of the same sex. Today, LGBT divorce can be obtained in any state if the couple has fulfilled the prescribed legal requirements. Just as in opposite-sex relations, in same-sex marriage, couple has to go through asset division and custody discussions when divorcing. Depending on how amicable a marriage dissolution is, spouses will have to either talk such aspects out and draft an agreement or go through a trial where a judge will make a decision for them.

Same-Sex Divorce Residency Requirements

Any couple needs to fulfill the residency requirements in the state where it wants to file. Each state has its own laws, but in general, either of the spouses, mostly the one initiating a divorce, must have lived there for an average of 3-6 months. There may also be the county residency requirements that spouses will be expected to meet to get a marriage dissolution in a local court. Even if you have married in another state or county, you need to file in the place of your residence.

Grounds for Divorce in a Same Sex Marriage

There are two types of divorce in the USA – no-fault and fault-based. In a no-fault divorce, none of the spouses have to prove each other’s fault in the marriage coming to an end. Therefore, the most common grounds for a no-fault dissolution are “irreconcilable differences,” which simply shows that a couple can no longer stay together.

Fault divorce, however, presupposes that one of the spouses is to blame for the breakdown of the relationship. While the fault-based divorce grounds vary across the states, the common ones are:

  • Adultery.
  • Alcohol and drug abuse.
  • Unreasonable behavior.
  • Physical abuse.
  • Imprisonment with a specific minimal conviction.
  • Separation or desertion for a certain period of time.

Same-Sex Divorce Process

LGBT divorce process doesn’t significantly differ from that of opposite-sex couples. Before finding out about the steps of the divorce process and how it works, you have to determine what kind of marriage dissolution you want to file for. There are two types of divorce: uncontested and contested. In a contested case, the couple is unable to come to an agreement concerning important matters and needs to hire lawyers to help them to reach a consensus. An uncontested divorce means that spouses have settled on all the issues and just need to terminate their marriage.

One of the major pros of uncontested cases is that exes may choose to represent themselves in court without attorneys. As there are no decisions to dispute, there are no risks as long as spouses remain amicable, get their paperwork in order, and follow the filing process in their state. Moreover, uncontested same-sex divorces take less time to be finalized as there is no need in multiple court hearings. Therefore, spouses save both time and money just by settling their differences themselves.

Filing for a Same-Sex Divorce

Here are the basic steps you need to take to file for a same-sex divorce:

  • Make sure that you or your spouse have lived in the state where you plan to file enough for a period of time required to become a resident. Additionally, check whether there are county-specific residency requirements for you to file there.
  • Collect and fill out all the same-sex divorce papers needed for your specific case. You need to find legal and up-to-date version of forms, choose those that suit your family situation, and carefully answer each question. If any of these conditions isn’t met, your documents will be rejected and you will have to repeat the process.
  • File your paperwork with the court. Check which type of court you need to file the papers at and pay the court fees unless you’re requesting for them to be waived.
  • Serve your spouse. You are legally obligated to inform your ex about the commencement of divorce and need to provide them with the copies of the forms you filed. Not all the states will allow you to just hand the paperwork to your spouse. In some, you will have to ask another adult, a process server, or a sheriff to do it for you.
  • If there is a waiting period in your state, wait for it to pass. Once it is over, you may contact the court clerk and schedule the hearing date.
  • Go to a hearing. In some states, you and your spouse may be required to be present during the hearing to answer the questions of the Judge. Sometimes, it would be acceptable for your ex not to come, but it is necessary to run it by the clerk.
  • Wait for a divorce decree to be signed. In certain states, you will have to wait for some time for it to be signed, and in others, you will receive it right after the hearing.

If you and your ex have underage kids, there might be additional steps for you to take. For instance, a lot of states require spouses to pass parenting courses to help their children cope with the transition into post-divorce life.

Custody and Child Support

Same-sex divorce custody is one of the complicated and controversial aspects of LGBT divorce process:

  • If same-sex spouses are both legal parents, for instance, when the child was born in marriage or there was a joint adoption, then the procedure will be the same as for opposite-sex couples.
  • In case when there is only one legal parent, the second one will likely not to get any rights at all. It means that he or she cannot seek any type of custody or ask for visitations.

There are certain exceptions and a lot depends on the state and the specific court. Still, if spouses do not put a parenting agreement in place, it is going to be hard for a non-legal parent to get any parental rights in court.

If both spouses are legal parents, they have to decide:

  • What type of custody each one will have.
  • Who will receive child support.
  • How much the payment would be.

There are two types of same-sex divorce custody: legal (a right to make important decisions for your child) and physical (determines how much time the child spends at each of the parent’s homes). The US courts are inclined to grant joint custody if it is in the child’s best interests. However, cases when one parent has sole legal custody are also very common.

When it comes to child support payments, a parent who spends more time with a kid is more likely to receive it. The amount of support and who it will be paid for is determined in each state depending on many factors. Usually, there are specific Child Support Guidelines that help either parents or courts make appropriate calculations and decisions to ensure that children’s needs are catered to properly.

Division of Property

There are two approaches to property division in the US – equal and equitable distribution. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin are community property states that divide marital assets equally, while the rest of the states do it equitably, i.e., fairly. This implies that in the first case, the judge makes a 50/50 division of assets acquired during the marriage, while the separate property spouses had before getting married is kept by each party. In the second case, the assets are divided fairly but not necessarily equally.

Due to the fact that many couples might have lived together for many years before same-sex marriage was legal, the LGBT property divisions may appear unfair to one of the sides. In most cases, if some property was acquired before the same-sex marriage was officially allowed, it will be considered separate property. However, there may be some cases where a judge will view certain assets as being “mingled” with the marital property and thus subject to division.

Spousal Support

The problem with awarding alimony in same-sex divorce is that the longer the marriage is, the higher is the amount of spousal support. However, the same as with property division, there can be a situation when a couple has lived together for many years before tying the knot officially. Some courts may take this situation into account while granting spousal support, but it’s not currently a common practice. In general, alimony is granted if one party needs temporary or full-time financial support, but there are also some more factors, such as age, health, incomes, standards of living of the couple and the contribution of each spouse to another’s success, the length of the marriage, etc.

Top 5 Same-Sex Divorce Frequently Asked Questions

How Does Same-Sex Divorce Work?

It works the same way as opposite-sex divorce does. You need to determine what type of divorce you file for, reach agreement on important aspects such as child custody and support, property division, and alimony, as well as prepare the paperwork and file it with the court. The rest of the steps depend on whether you filed for contested or uncontested marriage dissolution. If your case is contested, first of all, you will need to hire a lawyer.

Why Is Divorce for Many Same-Sex Couples Currently More Complicated Than for Opposite-Sex Couples?

The main problem is that couples might have lived together for many years before 2015, when the same-sex marriage became legal. In this regard, there may be some problems with property division and alimony because the court may not take into account the situation while making a decision. Moreover, a court would not automatically assume another spouse to be a parent as it would in opposite-sex marriage, and custody matters might be complicated by the fact that one of the spouses is not legally recognized as a parent.

How Long Does a Same-Sex Divorce Take to Finalize?

The waiting period for a same-sex divorce is established by each state separately. It varies and may be anywhere from none to 6 months.

Do Children Adjust Better After Divorce When They Live with a Same-Sex Partner?

It’s quite hard to answer this question for sure. It mainly depends on the family situation and emotional attachment of the child to each of the parents. In general, children of same-sex couples go through a divorce differently, just as the ones from opposite-sex families. A lot depends on their age, character, and overall family situation.

What Is the Divorce Rate of Same-Sex Marriages?

The divorce rate of same-sex couples is almost twice as low as that of the opposite-sex: 1-1.6% against 2% across the country.


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