Same-sex or marriage equality became legal in June 2015. Naturally, gay divorce wasn’t far behind. Here is everything you need to know about gay divorce should your gay marriage come to an end.
A brief history of marriage equality/gay marriage
Before we get into the specifics of gay divorce, let’s first discuss a brief history of the fight to gain marriage equality in the United States.
DOMA stands for Defense of Marriage Act. The Act was signed into law on September 21, 1996, by then-President Bill Clinton, only after it passed both the House and Senate.
DOMA is divided into three sections:
Section 1: Citation for the Act as “Defense of Marriage Act.”
Section 2: No state is required to respect or treat a same-sex marriage honored by another state, territory, possession, or tribe as a marriage with all the benefits and binding that a heterosexual couple gains from a legal marriage.
Section 3: The word “marriage” refers only to a legal union by a man and woman and “spouse” refers only to members of the opposite sex who are a wife or a husband.
After the Act was made legal, lawsuits and repeal efforts started rolling in. There were two cases held before the United States Supreme Court that changed the sections of DOMA.
The case of the United States v. Windsor saw section 3 struck down by the Supreme Court on June 26, 2013. With that win for the gay community, an even bigger landmark case would gain steam after first being introduced in 2012.
Obergefell v. Hodges – 2015
Plaintiffs in federal district court cases spanning four states between 2012 and 2014 led to the landmark civil rights case Obergefell v. Hodges. A split between circuit courts as to the constitutionality of DOMA meant that the case would head to the Supreme Court.
In the Supreme Court, Justices ruled in favor of the plaintiffs, stating same-sex individuals fundamental rights under the Constitution requiring states to recognize their out-of-jurisdiction marriages as legally binding throughout the country.
It was a well-deserved win for same-sex marriage, which by that point had been made legal in 36 states, as well as Guam and Washington, D.C. DOMA section 2 was officially struck down, citing a violation of both the Due Process Clause and the Fourteenth Amendment under the Constitution, the Equal Protection Clause.
Though most states complied with accepting same-sex marriage and issuing licenses, not all did it quickly. Alabama and Texas held out as long as they could, but gay marriage is officially legal in all states, including territories.
When did gay divorce start?
No, we’re not talking about the play Gay Divorce from 1932. We’re talking about the first gay divorces that came after gay marriage became legal.
Marriage recognition by state v federal
Prior to the 2013 Supreme Court’s decision in the United States v. Windsor, same-sex couples who decided to dissolve their marriages could find themselves without a legal route to take.
At this point, only states that accepted gay marriage as legal would allow divorce proceedings. So, if a couple married in a legal state but then moved to an illegal state, they would be unable to divorce in their new state. This could lead to a costly civil suit to settle property and monetary disputes.
In May 2013, Delaware and Minnesota legalized gay marriage as well as allowing non-resident gay couples to obtain a divorce legally through their courts.
It was only after the landmark Obergefell case that same-sex married couples could seek a divorce in any US state.
Navigating gay divorce does not have to be costly if you approach it responsibly. Learn more about the nuances of gay divorce from the Cash Wise Ex-Wives, Kayla Sloan and Shanah Bell. These women open up about their marriages and subsequent divorces, with tips and resources to help you navigate your gay divorce without going broke.
Navigating divorce on the Queer Money® podcast with Cash Wise Ex-Wives:
Divorce Rates: Same-Sex Vs. Opposite-Sex
Without looking, which do you think has a higher divorce rate: same-sex or opposite-sex marriages? Is there a difference between gay and lesbian divorces?
There is. In fact, lesbians tend to get divorced twice as much as gay couples. Opposite-sex marriages are somewhere in between lesbian and gay marriages that end in divorce.
These stats are also in line with a 2015 study from the Journal of Family Psychology. In the study, 190 couples were followed for five years post-adoption to examine relationship dissolution. Of the 15 relationships that ended, 12.3 percent were lesbians, 8.3 percent were heterosexual and just 2 percent were gay couples.
One reason for the high lesbian divorce rate is the speed at which the relationship progresses. It’s not uncommon for lesbians to move in together and head for marriage within a year of meeting each other. Other reasons for the high divorce rate:
Ignoring potential red flags prior to making it legal
Filing for divorce without trying to work things out (lack of pre- and post-marital counseling)
How is divorce different for married vs civil union vs domestic partners?
In the United States, same-sex marriage has all the rights and protections as opposite-sex marriage. Before we get into the differences of divorce proceedings, let’s differentiate the terms civil union and domestic partnership:
Civil union: also called a civil partnership, a civil union is recognized in many places as the same-sex “mostly equivalent” to marriage, in places where same-sex marriage is not valid. Whether all or just most of the rights of marriage are recognized depends on the location. Some countries only allow same-sex couples to enter into a civil union, while others allow any gender combination.
Domestic partnership: a union by two individuals who live together and share a life together. This partnership does have a few benefits of marriage, but not as much as a civil union. To make it more confusing, some jurisdictions consider a domestic partnership to be the same as a civil union, while others create a wider gap. In 2013, the US military allowed service members to enter into a domestic partnership with their same-sex partners to access certain benefits previously only allowed under an opposite-sex marriage.
This pdf from the National Centers for Lesbian Rights provides detailed information broken down by state to show partnership opportunities and restrictions.
As far as divorce goes, it depends on the type of union and how many legal unions a couple has. In some states, you could be considered a civil union and a domestic partnership. To make it even more difficult, you may not be able to dissolve a union legally if you entered into the union in one state and move to another that doesn’t recognize your union.
Some states automatically converted civil unions and domestic partnerships into marriages once same-sex marriage became legal in the US. New Jersey, Illinois, Hawaii, Colorado and Vermont are the only states who still recognize civil unions. In these instances, you would go through normal divorce proceedings to dissolve the union.
It’s important to note that in order to no longer be legally bound to the other person, you dissolve any and all unions in the eyes of the court. This could be as simple as filling out a form or as complicated as going through standard divorce proceedings with the division of assets and property.
You do not want to be put in a position where you’ve moved on from a partnership, only to find out that they still have legal rights to act on your behalf in some capacity. For instance, if you get hurt and are unable to make medical decisions for yourself and they are considered the next of kin in the eyes of the law.
As marriage and partnership laws continue to change, it’s best to speak with a knowledgeable attorney on same-sex partnerships before you start the process to determine the best course of action.
What if we were married before it became legal nationally?
The type of union you entered into, the state you created the union in and when you did it makes a difference. Here’s how you would dissolve a marriage, union or partnership based on these factors.
Multiple registrations for domestic partnership or civil unions
Depending on your state and time period where you entered your partnership or union, you could have multiple registrations for your relationship. As discussed in the last section, you will need to ensure you dissolve each registration with the courts to completely remove any legal ties to your ex-partner.
If you entered into a civil union in one of the states that still recognizes them but then got married in another state, you likely will have to dissolve the union and marriage. The same could be true for the states that still recognize domestic partnerships:
District of Columbia
Division of assets obtained during civil unions and domestic partnerships
California, Nevada and Washington are considered community property states and require a 50/50 division of shared property and assets created during the partnership, just like a marriage. These states do not recognize civil unions so the division of assets would have to be determined during the dissolution of the union.
In states that still recognize domestic partnerships, division of assets is the same as dissolving a marriage. In those states with community property laws, the division is usually 50/50 except for the property of just one spouse. The exception to this rule is if there is a written agreement that clearly lays out ownership. The remaining six community property states:
For the remaining states, equitable distribution is part of the divorce proceedings. Division of property is done fairly, but it may not be considered equal. All assets are required by law to be disclosed during dissolution proceedings, and will usually be divided up by the judge so each partner gets their fair share.
Find out if money is ruining your divorce on this Queer Money®:
Dissolution of assets from a civil union
Civil unions are only recognized in five states in the US and aren’t recognized at all on the federal level, except for those converted to a marriage.
In states with community property laws, the 50/50 joint property split applies as referenced above. In equitable distribution states, civil unions enjoy joint ownership of property and would require assets to be divided in a “fair but not necessarily equal” way.
Dissolution of assets from a domestic partnership
Dissolution of assets from a domestic partnership works just like marriage and is determined by the state. Community property vs equitable distribution remains the same, except for states that don’t require a statutory requirement for equitable distribution.
Generally speaking, property acquired before the partnership remains with the individual and community property is divided up according to the laws of the state where the partnership is dissolved.
Residency requirements are different between states and may or may not have an effect on divorce proceedings from a marriage, domestic partnership or civil union.
For example, ending a marriage in California requires six-months of residency whereas there is no requirement for dissolution of a domestic partnership. In Vermont, there are no residency requirements to end a civil union but there is a six-month requirement for marriage.
It’s best to check with the state you reside or plan to file for divorce to determine if there is a residency requirement to dissolve your union, marriage or partnership.
What are the basics of a divorce, gay divorce, straight divorce or otherwise?
Now that gay marriage is legal across the United States, gay divorce looks much the same as a straight divorce. Here are the basic steps you can expect to follow if you wish to proceed with divorce:
File the necessary paperwork with the courts.
Ask for temporary orders (child support, spousal support and custody) if needed.
Have your spouse served and await the response.
Negotiate a settlement (mediation or settlement conference).
Go to trial (if needed).
Finalize the judgment of divorce.
While each state is different, these steps can serve as a guideline for how your divorce may go. But does the reason you’re getting divorced matter? It does in some states.
In a no-fault divorce, one spouse can file for divorce without the other without providing a specific reason. All states allow a no-fault divorce, and they can simply state that they were not getting along. This can be called a number of things:
Irremediable breakdown of the marriage
Some states require the spouses to live separately for a specific length of time, up to a year. Once they’ve met this requirement, they can then proceed with a no-fault divorce.
A fault-based divorce is handled differently than a no-fault divorce. Having fault means that there are grounds other than no longer getting along that necessitate a divorce. Only certain states allow fault-based divorces:
In a fault-based divorce, the filer must provide proof on the grounds they are raising fault on their spouse. The grounds for a fault-based divorce include:
Separation may be necessary to proceed with a fault-based divorce, just like with a no-fault divorce.
Additional complications of determining the true length of a relationship vs the legal date of marriage?
Before gay marriage was legal, many couples chose a civil union or domestic partnership. Others decided to just stay together in a committed partnership, getting married when their state allowed or once it became legal in 2015.
The length of the relationship prior to marriage could create complications when filing for divorce. For example, if a couple was together for 10 years prior to marriage, they may have commingled money and assets or even had children together.
If this is the case, the judge may decide to use those additional 10 years as part of the marriage. This could change the entire outcome of the case when dividing up assets, property and determining alimony (spousal support). The outcome also could have different tax implications on the federal level.
Each state has different guidelines to follow and there is no guarantee there is enough proof to warrant the entire length of the relationship be included. However, this is something to think about if you are considering getting a divorce.
See how LGBTQ money is different in this partnership with Prudential Financial:
Additional complications for transgender and non-binary individuals?
Transgender and non-binary individuals have their own set of complications during the process of divorce, regardless of when they transitioned or came out.
In the case of James and Rebecca, James’ gender identity was put on trial and made part of the public record. For someone who wants to keep their gender identity private, this can have devastating psychological issues.
If the spouses aren’t able to cooperate through the divorce and have to go to trial, there could be an unwanted intrusion into the transgender or non-binary spouse’s personal information and identity.
Division of assets
If an agreement isn’t made prior to the divorce process on how assets are to be divided, the case likely will end up at trial if an agreement can’t be made in mediation.
All debts and assets owned by each person and jointly will be made part of the divorce proceedings. The duration of the relationship and marriage also play into who ends up with what in the final divorce decree.
Division of marital property
Depending on where you live, the division of assets and marital property may be different, and not all are in favor of one spouse or the other. Individual property, like cars, houses and other investments brought into the marriage have to be considered.
If there were no profits or benefits enjoyed during the marriage, they may stay with the individual. If there were, then they could be split between the two.
Combined marital property can be determined by the spouses if they can mediate amicably. If both agree, most judges will approve the division, or make some changes if there are circumstances that warrant it.
Custody and child support in same-sex divorces can be tricky, especially if only one parent is considered the legal parent at the time of separation. If the spouses can’t decide on their own, they could end up with a rude awakening in court, depending on where they are and who the judge is.
It is easier to make a decision with a jointly adopted couple or when both spouses are legal guardians to the child(ren). When children enter the picture, it’s best to have an attorney draft a parenting agreement to lay out rights and responsibilities as well as custody and child support in case the marriage ends in divorce.
How are kids treated in a same-sex divorce?
As mentioned in the prior section, guardianship of the kids in question will dictate how the divorce and subsequent custody hearings will go. Without a parenting agreement in place, and with one spouse not being the legal parent, custody and child support could turn into a battle.
Jointly adopted or both parents being legal guardians usually has the custody and support act much like an opposite-sex divorce. For a non-birth parent, proceedings can be messy and not end up in their favor.
Legal parents v non-legal parent
While a legal parent is assumed to have primary custody, it’s not always that way in all cases. If the non-legal parent can prove they have played an essential role in raising the child(ren), their case is stronger for some type of custody or at least, visitation.
Let’s look at two cases when the legal parent and non-legal parent went through the gay divorce process.
Heatzig v. MacLean – 2008
In this case, two women decided they wanted to have children together after entering into a domestic partnership in California, subsequently moving to North Carolina.
The defendant wanted to have children and got pregnant by artificial insemination, resulting in opposite-sex twins. Both names were on the birth certificate form, though only the birth mother signed.
For three years, the couple lived together, caring for the children, as the defendant stayed home and the plaintiff worked. The working spouse added the children to her health insurance, and both spouses signed medical forms and school enrollment forms as parents. The defendant also listed the plaintiff as guardian of the children upon her death.
When the relationship started to deteriorate, the defendant took the children and moved out. They had an agreement on shared access to the children. Eventually, the plaintiff filed for joint custody and won her case, even though she was the non-legal parent.
Moriggia v. Catselo – 2017
In this case, neither woman was the biological mother of the child and they were not married but presented as life partners. The plaintiff had a daughter she brought into the relationship and the defendant was impregnated with donor sperm and egg for their child together. Both women signed a conception contract declaring them both equal rights and both contributed monetarily to the process.
Up until the birth, the plaintiff was considered a parent until the defendant changed her mind. Only the defendant signed the birth certificate, but they still presented as a couple. The defendant took on a primary caretaker role and both parties took care of the children monetarily.
When they split, the defendant seemingly cut the plaintiff off from the child conceived during their relationship. There are a lot of nuances to this case, but ultimately, the plaintiff was able to file a case for custody, though was only able to claim custodial rights and not legal parenthood.
The courts based this on the lack of a cohesive family unit, parents not being married and the lack of adoption by the plaintiff. However, the actions and intentions by the legal parents to act as a family unit helped win custodial rights.
What about alimony and gay divorce?
Alimony is the same as spousal support. If alimony is awarded as part of a divorce, the higher-earning spouse must pay an amount monthly (or a lump sum) to the low-earning or non-earning spouse for a specific length of time.
There are many factors considered when determining support, including:
Length of marriage
Each individual income
Expectations of each spouse
Where the marriage began and where the divorce is filed
With a gay divorce, the amount of time married compared to the time in a relationship may come into question. Sometimes, alimony can be awarded to an individual based on the length of the relationship, which is called palimony.
While not common, palimony exists far more in same-sex relationships than opposite-sex, especially considering that in many states, gay marriage has only been legal since 2015. A couple that has been together for several years prior may find themselves in a situation that warrants a palimony pay-out.
The term was made popular by a case from the 1970s where an opposite-sex couple separated after years together and she filed a case seeking financial support. She agreed to be a homemaker while he supported her throughout their relationship. She ended up winning after being able to provide sufficient evidence of their agreement.
However, most states require clear written or oral contracts when awarding palimony, as well as:
Significant income disparities
An implied understanding of the arrangement
Sacrifices and contributions made by the requesting party
Oral promises or agreements
Length of time in the relationship
Awarding of palimony or spousal support could also have tax consequences. Once the Tax Cuts & Jobs Act of 2017 took effect on December 31, 2018, the tax implications have changed.
Spousal support is no longer tax deductible for the payor or required to be listed as taxable income by the payee. For many payers, this is bad news, as they no longer have a deduction they can take against their taxable income. For many payees, this is a welcome change, as they no longer need to list their support payments as an income source.
Though the judge in the divorce case gets the final say, reaching an agreement in mediation is usually more preferable than going to trial.
For one, it’s much less expensive to reach a settlement agreement rather than face the judge. You are also then at the mercy of the judge, and may not end up with as favorable of an outcome as you could have had both spouses been able to reach a settlement agreement in mediation.
What are the costs of divorce?
The cost of divorce can be high, and that’s just the monetary cost, not to mention the mental cost many faces, especially if the divorce was not something both parties wanted.
This section discusses the financial costs of divorce.
What’s the average cost?
According to TheStreet.com, the average cost of a divorce in the United States is $15,000 per person. Now, if the couple can split amicably in an uncontested divorce and only pay filing fees, that number drops down to just $500. These figures are the same whether you’re straight or gay and going through a divorce.
The amount varies widely depending on if an attorney is needed, the cost of filing and court fees and whether or not other individuals need to be involved, like financial advisors or forensic accountants.
If there are kids involved, expect the divorce to be at least the average, if not more, when having to determine custody and other marital division. There may be fees for custody evaluators or other advisor fees to consider as well.
Here’s an idea of what the costs incurred could be.
On the low end, an uncontested divorce can cost about $1,000 with an attorney. In higher cost of living areas, expect that number to be closer to $5,000.
For contested divorces, the bulk of the costs will be attorney’s fees. Expect to pay around $2,500 if the case doesn’t go to trial. If it does, that figure could rise to close to $15,000 per case, not per person.
Court fees/Filing fees
In North Carolina, the filing fee is the lowest at just $75 for an absolute divorce. The highest state currently to file is $435 in California.
Court fees vary as well, not only by state but by city and county. Court fees can include copies and certified copies of court records, filing motions and petitions. These items can range from a few cents for copies to more than $100 for filing documents.
Custody evaluators/appraisers and advisors’ fees
When a custody case gets messy and the divorcees just can’t agree, sometimes a custody evaluator is needed to make decisions for the benefit of the child(ren).
These fees are also dependent on location and are typically paid to the custody evaluator at an hourly rate. According to Divorcenet.com, a county-provided evaluator can cost between $1,000 to $2,500.
However, if a private evaluator is needed, the cost can be $10,000 or more.
Financial advisor fees
Finances are a huge part of a relationship, and they become all-important during a divorce, whether you’re gay or straight.
Expect to pay a financial advisor hourly between $100 and $400 for their services to help them determine a fair and equitable division of assets. Some will do a flat fee, which can be $2,500 or more.
If one spouse thinks the other is hiding money or other assets, a forensic accountant may be needed. Their job is to trace accounts and do whatever is needed to make sure all assets are accounted for in the divorce process.
Forensic accountants aren’t cheap; you can expect to pay upwards of $5,000 for their services. The longer it takes and the more information thought to be hidden, the higher the price tag.
The messier the divorce, the more likely a private investigator may be needed. In this case, the hourly rate can be anywhere from $50 to $250 per hour or more.
Some PI’s will work on a retainer, which can be anywhere from $500 to over $10,000. You also may be on the hook for administrative costs like mileage, filing paperwork, travel expenses and court appearance fees.
Are DIY divorces possible?
Yes, if both sides agree on the division of assets and debts, you can DIY your divorce. It gets trickier if there are children involved, but even then, you may be able to just pay for court and filing fees and get out without incurring much debt.
If you’re interested in going the DIY route, here are the basics of what to expect:
Know which court to file in.
Make sure you meet state residency requirements, if applicable.
Fill out the paperwork completely and factually. Some states allow for online paperwork submission, which can be found by asking the court clerk.
Sign forms in the presence of a notary public.
Make copies for you and your spouse and give the original to the court.
Present the paperwork to the clerk with your filing fees. They will stamp all copies and the original. The filer is responsible for serving the spouse, so check with the clerk to determine the right way in your county.
You or your spouse should then create a settlement agreement, which both parties have to sign with a notary as witness.
Finish any remaining divorce documents, which can include custody, financial statements, affidavits and court hearing requests.
All parties are notified of the court appearance. Be there on time so the judge can make sure both parties are in agreement. The case may be closed there and the divorce granted, or the next court date will be scheduled.
One granted, be sure to get certified copies of the divorce decree or judgment.
Prenuptials vs post-nuptials
One way to make the process of divorce easier and potentially less costly is having a prenuptial or post-nuptial agreement. This is a document signed by both parties with at least one uninterested witness detailing how assets will be divided upon separation.
A prenuptial agreement, or premarital agreement, is laid out prior to the marriage or civil union takes place. In contrast, a postnuptial agreement is done after the marriage or civil union has already taken place.
Both parties must enter into the contract willingly and understand the contents. It must be written and signed by both spouses. It’s encouraged to have an attorney for each side help with execution or at the least, review the document prior to signing.
These agreements can stipulate what happens in the event of one’s death, the anticipation of separation or how the spouses’ rights are affected after divorce, including alimony, support and division of assets.
How can marriage agreements make gay divorce more amicable?
While not always a fun thing to think about, pre- or postnuptial agreements can help avoid the time and cost of divorce proceedings. They also clearly lay out what each spouse can expect to receive or surrender if their marriage ends up in divorce.
These types of arrangements can alleviate the stress of future divorce and even make gay divorce more amicable than it would have been in the absence of an agreement.
If you’re already married and wonder if a postnuptial agreement is right for you, be sure to check out Episode 78 of Queer Money®.
Jennifer Wray of Harris Law on Queer Money®:
Going through mediation is another way to save money and make gay divorce more amicable. If both parties can agree, they will save each other the cost and time of going to trial to finalize their divorce.
In the end, divorce is almost always going to be an expensive way to end a relationship if you can’t make it work in mediation.
Other help to get through gay divorces:
Mandy Sleight is a professional freelance writer who also provides editing and proofreading services to a broad range of clients. Due to her tremendous experience, her work has been featured in Kiplinger, Market Watch, Money Geek, and other major publications. If you want to contact Mandy, you can find her on Facebook or LinkedIn, or by reaching out on her website contact page.
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