Last updated on April 8, 2021
Same-sex marriage was legalized at the federal level in 2015. This sweeping legalization is certainly a means of celebration for the LGBT community, and while same-sex couples can now get married in any state, they may hit some snags when it comes to divorce. This is largely because this change of law is still trickling down to the state level, and some people who married in one state but were not recognized as married in other states are encountering red tape when trying to end their unions.
Before the Change in Marriage Law
Every state had a different law regarding gay marriage before the Obergefell v. Hodges Supreme Court decision. Some states fully recognized same-sex marriage, while others would grant domestic partnerships or civil unions, while many banned same-sex marriage completely.
Sometimes this meant that destination weddings in a state that had legalized gay marriage were legal, but when the couple returned home, their marriage was not legally recognized at all.
Divorce was as easy to obtain for a gay couple in the legalized states as it was for a heterosexual couple, but in states where it was not legal, dissolving a union was nearly impossible.
What Couples Are Facing Now
Most states are now allowing gay and lesbian couples to divorce whether they married in that state or not, but at least one partner must have a residency in that state for a certain length of time.
If you are a member of the LGBT community and are seeking divorce, you will have to deal with the same host of issues as opposite-sex couples, including child custody, property division and spousal support. However, these issues can be more complex for LGBT couples.
For example, parent-child relationships may not be legally recognized unless the non-biological parent legally adopted the child. Or, property division may be difficult to sort out if you were with your spouse for many years prior to being able to legally wed because property is considered marital, and subject to division, only when it was acquired during the marriage. Length of the marriage is also a factor that is considered when awarding spousal support.
For these reasons, it is important that people with LGBT family law concerns work with an attorney to help reach their desired outcome and avoid potential legal pitfalls.
