Despite marriage equality, same-sex divorce can have unique challenges

On Behalf of | Jun 26, 2024 | Divorce |

Almost 10 years ago, the U.S. Supreme Court made marriage equality the law of the land. Since then, same-sex couples across the country have had the same divorce rights as other couples. However, many same-sex divorces pose challenges that are rare or nonexistent in heterosexual divorces. This is particularly true when dividing property in cases involving a same-sex couple who were together before their marriage could be legal nationwide.

Tangled history

On paper, the legal framework of divorce should be the same whatever sex or gender the parties may be. The parties must deal with the same issues of property division, spousal support and, if applicable, child custody and child support. In practice, these issues can be much more complicated. In part, this is due to the tangled history of same-sex marriage.

Before the Supreme Court’s Obergefell decision came down in 2015, some states had legalized same-sex marriage while others had not. Here in California, same-sex marriage was briefly legal in 2008, and then not available until 2013.

This history can create some complicated property division issues in same-sex divorces if the couple married before Obergefell.

Property division

When a married couple divorces in California, they must divide their property under the state’s community property law. Under this process, assets and debts acquired during the marriage are considered to be jointly owned by both. When the couple divorces, they divide their community property between them. Other states handle the process somewhat differently, and so legal complications can arise when a couple lived and acquired property in another state before moving to California.

In any case, the cutoff between community property (or in most states, “marital property”) and separate property is the date of the marriage. This means even if a couple lived and acquired property together for many years before they were legally married in 2015, they may not be able to divide assets they acquired before they were legally married.

Further complicating matters: Before Obergefell, some states recognized civil unions or domestic partnerships. The states treat these partnerships much like marriages, but there are differences. Some states treat the dissolution of a domestic partnership exactly the same as a divorce; others have different procedures.

The bottom line

As we have seen, same-sex divorce can raise challenging legal issues. This is one reason it is wise for people going through a same-sex divorce to seek out help from professionals who have experience in cases like theirs.


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