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Same-Sex Divorce

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Can Married Same-Sex Couples Get a Divorce?

Prior to the United States Supreme Court’s 2015 ruling in Obergefell v. Hodges, same-sex spouses had difficulty getting divorced, as not all states recognized same-sex marriage. Couples who would get married in a state where same-sex marriage was legal, and then move to another state where it was not, would be barred from receiving a divorce. Of course, they could get a divorce in the state where they were married, but states usually require a certain length of residency before being eligible for divorce.

In many of the states that did allow same-sex marriage before Obergefell v. Hodges, they also allowed non-resident same-sex couples to divorce. Now, same-sex couples have a right to marriage, as well as divorce, no matter what state it is that they may live. Even though same-sex marriage and divorce is legal, some couples are still experiencing issues.

The Difference Between Domestic Partnerships vs. Civil Unions

Domestic partnerships and civil unions were often used interchangeably, but there is a difference (no matter how small it might feel). Civil unions tend to be recognized as a “legal marriage” in states that offer them, meaning all the same benefits of marriage but without calling it marriage.

However, a domestic partnership typically has limited benefits (depending on the state), like unable to file taxes or request child support from a former domestic partner.

After the legalization of same-sex marriage in 2015, the following states converted civil unions into marriages:

  • Connecticut: Civil unions were allowed in 2005 but had limited benefits. But in 2010, civil unions were no longer offered and all existing civil unions were converted into marriages.
  • Delaware: Civil unions were approved and issued in 2012, and they offered the same protections and rights as unions. In 2013, Delaware converted civil unions into marriages.
  • New Hampshire: Civil unions were created in 2008, and in 2010 New Hampshire legalized and implemented same-sex marriage. In 2011, all civil unions were turned into marriage.
  • Rhode Island: Civil unions were created in 2011 and they offered the same benefits as marriage. In 2013, Rhode Island legalized same-sex marriage and converted all civil unions into marriage.
  • Vermont: Same-sex marriage was legalized in 2009, but civil unions were offered long before. Any civil union before 2009 remains valid, but civil unions are no longer offered in Vermont.

How to Dissolve a Domestic Partnership

For couples who were previously unable to get married and instead opted for domestic partnerships, some states do not recognize these types of relationships. The steps to dissolve a domestic partnership varies, depending on the state law.

First, the states that can dissolve a domestic partnership are the states that recognize one. Second, the states have unique requirements for dissolving a domestic partnership. Many states allow a pain-free dissolution if there are no children or if, in general, it’s an uncomplicated dissolution.

If there are a large number of assets, children, or anything else that will require legal division, then the state may require you to go through a longer process of dissolution proceedings. If you want to learn about dissolving a civil union, then you can read more about it here: How to Dissolve a Civil Union.

What Should You Consider Before Filing for Divorce?

Though same-sex marriage and divorce is settled at the federal level, it is important to check your own state’s laws on what is required to divorce and dissolve civil unions. For instance, couples who remain in civil unions may have to establish residency wherever the union was performed in order to legally end the relationship.

Other considerations to look into when considering divorce include:

  • Residency Requirements: Some states require couples to reside in-state for a certain length of time before filing for divorce.
  • Rules for Filing Divorce: Each state will have different requirements for filing paperwork, mandatory arbitration, marriage counseling, trial separation period, etc. 
  • No-Fault Divorce State Laws: Many states offer no-fault divorce, such as those citing “irreconcilable differences” as the cause for the dissolution of the marriage.
  • At-Fault Divorce State Laws: Some states will fault one party for the breakdown of the marriage. For instance, if a spouse has an extramarital affair, the court may grant an at-fault divorce.

Do I Need a Lawyer for My Same-Sex Divorce?

If you are divorcing your spouse, you should contact a local family law attorney. Anyone, whether they’re in a same-sex or heterosexual marriage, should seek legal counsel prior to going through the divorce process. An experienced attorney will advise you of your rights, and will assist you in gathering all that is necessary to ensure smooth divorce proceedings.

Photo of page author Sarah Tipton

, LegalMatch Legal Writer

Last Modified: 08-09-2018 02:27 AM PDT

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