Same-Sex Divorce

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 Can Married Same Sex Couples Get a Divorce?

In 2015, the United States of America declared that same sex marriage is legal throughout the country through the ruling of the Supreme Court Obergefell v. Hodges case. Prior to this ruling, same sex spouses who were legally married in states which allowed same sex marriage had difficulty in obtaining a divorce.

This frequently happened when a same sex couple married in a state which allowed the union, then moved to a state which did not. They would be barred from receiving a divorce, due to the fact that obtaining a divorce through the state in which they were married involved a certain length of residence before being eligible for divorce.

Because of the ruling in Obergefell v. Hodges, same sex couples have the right to marry anywhere in the U.S., as well as divorce anywhere in the U.S. However, regardless of these facts, some same sex couples still face issues when attempting to file for divorce.

What Is the Difference Between Domestic Partnerships and Civil Unions?

Prior to the legalization of actual marriage for same sex couples, many entered into marriage alternatives, such as domestic partnerships or civil unions. Although these two terms are often used interchangeably, and they are very similar to each other, the two marriage alternatives are different from each other.

In legal terms, a domestic partnership is a committed relationship between people who live together, but are not married. In states which recognize this type of marriage alternative, the couple may register their relationship through the state in order to receive access to some specific government benefits. Those involved in a domestic partnership share a residence and their finances, and may have children together as unmarried parents. Before same sex marriage was legalized across the country, many same sex couples entered into a domestic partnership.

A civil union is another type of legal status offered to couples at the state level. What this means is that the unmarried couple is offered nearly all of the same benefits and protections that are offered to married couples at the state level, but not federally. Couples who are considered to be in a civil union have hospital visitation rights, property rights, and adoption rights. Once again, these rights are only granted at the state level, and some states will offer rights that others will not. Many same sex couples entered into a civil union prior to the legalization of same sex marriages at the federal level.

Another way of looking at it is that civil unions are typically recognized as a “legal marriage” in states that offer the marriage alternative. They receive nearly all of the same benefits of marriage, without being legally married and therefore being governed by marriage and divorce laws. In contrast, a domestic partnership generally receives far limited and reduced benefits, such as being unable to request child support from a former domestic partnership.

Once same sex marriage was legalized in 2015, the following states converted its civil unions to marriages:

  • Connecticut: The state of Connecticut allowed limited civil unions up until 2005. However, since 2010, civil unions are no longer offered by the state and all existing unions were transitioned into marriages;
  • Delaware: In the state of Delaware, civil unions were approved and issued in 2012. These unions offered all of the same protections and rights as a marriage; in 2013, all Delaware civil unions were transitioned into marriages;
  • New Hampshire: New Hampshire civil unions were created in 2008. In 2010, the state legalized and implemented same sex marriages, and in 2011 all unions were turned into marriages;
  • Rhode Island: In 2011, Rhode Island created civil unions which offered the same benefits and rights as traditional marriages. In 2013, the state legalized same sex marriage and all civil unions were turned into legal marriages; and
  • Vermont: Vermont legalized same sex marriages in 2009, although civil unions were allowed by the state long before. Any civil union established prior to 2009 remains a valid civil union, but new civil unions are no longer offered in the state of Vermont.

How Is a Domestic Partnership Dissolved? What Should You Consider Before Filing For Divorce?

As previously mentioned, same sex couples who were not allowed to be legally married would often register their relationship as a domestic partnership in order to receive some sort of benefits and protections. These couples may encounter issues when attempting to dissolve the relationship, as some states do not recognize these types of relationships.

The steps to dissolve a domestic partnership will vary from state to state. In general, the states that can dissolve a domestic partnership are the states that recognize such marriage alternatives. Most states will allow for relatively pain-free dissolution if there are no children involved, or if the dissolution is generally uncomplicated. When there are a large number of assets involved in the domestic partnership, or if children are involved, the state may require the couple to go through a more complex dissolution proceeding.

It is important to note that although same sex marriage and divorce is now settled at the federal level, couples who are contemplating the process should check their state’s specific laws in order to determine what is required for divorce. The same is true when determining what is required to dissolve a civil union. An example of this would be how couples who remain in a civil union may be required to establish residency in the location in which the union was performed in order to legally end the relationship.

Some examples of other considerations to explore when contemplating divorce include, but are not limited to:

  • Residency Requirements: Many states maintain a requirement that the couple must reside in the state for a certain amount of time before they may file for divorce in that state. This requirement applies to heterosexual married couples, not just same sex married couples. Most states which maintain this requirement do so at a minimum of six months. Meaning, the couple must reside in that state for a minimum of six months before they may file for divorce in that state;
  • State Rules: As previously mentioned, each state has its own rules and requirements associated with filing for divorce. Some examples include paperwork to be filed, mandatory arbitration, mandatory marriage counseling, and a trial separation period; and/or
  • At Fault or No Fault: Most states are considered to be what is known as no-fault divorce states. What this means is that in order to file for divorce in these states, neither party needs to prove that the other party is somehow at fault for the divorce. An example of a no-fault divorce would be irreconcilable difference as the basis of the divorce. At-fault states will assign fault for the failure of the marriage to one party, which could affect matters such as a spousal support disbursement.

Do I Need an Attorney For a Same-Sex Divorce?

If you are in a same-sex marriage and are contemplating divorce, it is advised that you consult with an experienced local family lawyer. To reiterate, marriage and divorce rules and laws vary greatly from state to state.

For this reason it is better to consult with an area attorney, as they will be most familiar with your state’s specific laws and how that will affect your legal options. Your attorney can help you determine how best to start the divorce process, and will also be able to represent you in court as needed.

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