As of 2015, same-sex marriages have been legal everywhere in the nation.
That's great news. Unfortunately, however, not every marriage gets a happy ending. For same-sex couples that do divorce, the complicated history of same-sex marriages in the United States has a lasting legacy that can make divorce just as troublesome.
Prior to the landmark Supreme Court ruling granting marriage equality, only 36 states and Washington D.C. permitted same-sex couples to marry. Unsurprisingly, most same-sex couples who lived together weren't married prior to 2015. After 2015, the percentage of those same-sex couples living together who were married skyrocketed from 38 percent to 61 percent!
There are two major issues that same-sex couples who divorce can often face:
Dissolving all legal relationships
A lot of people entered same-sex domestic partnerships prior to the time that actual marriages were permitted. While imperfect, domestic partnerships were the only available alternatives.
Those domestic partnerships have to be specifically addressed if a now-married couple divorces because dissolving one doesn't generally affect the other. That's an additional legal step that couples can't afford to overlook.
Determining the length of the committed relationship
Even though California doesn't recognize common law marriages, there's a lot of good reasons to ask the court to consider the actual length of a same-sex relationship outside of the matrimonial bonds. Since many people in a committed same-sex relationship couldn't legally marry without going through extraordinary hoops, it's generally unfair not to consider the length of time a couple has been in a marital-like relationship when it comes time to divide up the assets and debts and address spousal support obligations.
Documentation is the most important thing to keep in mind in these situations. While that's pretty much true for any divorcing couple, good documentation in a same-sex marriage of everything from when the couple held a commitment ceremony to who brought which assets or debts into the relationship can have a drastic effect on the divorce settlement.
Naturally, there are other issues that can also become complicated in a same-sex divorce -- or any divorce. If your marriage is failing, the key thing to do is start gathering all the documentation you need to give the court the ability to make a fair decision.
Source: Communities Digital News, "Divorce: The unique hurdles same-sex couples face," Myra Fleischer, May 17, 2018