Is the Divorce Process Different for LGBTQ Couples?

Updated on January 27, 2022
Updated: January 18, 2023

In short, there is very little that makes the divorce process different for LGBTQ couples from straight couples. From asset division, to custody rights, to alimony payments for a dependent spouse, the same issues cause friction in any divorce process. Talented legal representation can save you from any number of stressful situations as you move through your divorce. Contact our experienced divorce lawyers at Tommalieh Law to schedule a free initial consultation for your case.

The Basics of Same-Sex Divorce

Federal marriage equality laws gave couples the right to marry, and divorce, in every state in the country. The process for divorce can sometimes become complicated. The United States Supreme Court ruled in favor of legalizing same-sex marriage nationally in 2015. This decision gave many across the country their first opportunity to benefit from legal marriage benefits including their spouse's health care plan, tax benefits, and other protections and perks enjoyed by married couples. 

same-sex couple divorce process

Prior to the supreme court's decision, 13 states had laws in place preventing same-sex marriages. Couples could, and would, still travel to different states or countries to marry in areas that allowed it. Couples that took this route and later chose to divorce would come to discover that they faced issues from a legal perspective, as their home state often would not recognize the marriage as being official. This problem is no longer prevalent, as same-sex marriage and divorce are now legal across the United States.

In What Way are Same-Sex Divorces Different?

In short, there is very little that separates LGBTQ divorce proceedings from heterosexual couples. An experienced attorney is one of the most important factors in a divorce regardless. The rulings and decisions that dictate your divorce terms can easily impact the rest of your life. Having a talented attorney to guide you through the challenges you will face can save you money, time, and stress. 

Same-sex couples will face the same elements in the divorce process as opposite-sex couples. Some of the hurdles you may face in your divorce case include:

  • Child Support - Child support payments are calculated based on several factors such as parental income and custody arrangements.
  • Child Custody and Parenting Divisions - Custody disputes are a common cause of friction in divorce proceedings. This step in the process includes important decisions on legal custody and physical custody of the child or children. A qualified family law attorney can help protect your parental rights in your case.
  • Alimony Payments - Support payments from one spouse to the other may be required under specific circumstances outlined in the divorce ruling.
  • Division of Property - Property that has been obtained over the course of the marriage is seen as community property and can be legally considered for an equitable division in a divorce. In high asset divorces, this can include division of businesses, partnerships, real estate, and professional corporations. Working with an experienced divorce lawyer can help you reach a fair distribution of marital property during your divorce case.

Complications in a Divorce

You and your spouse may file for divorce in your state as long as you meet the residency requirements, meaning you must be a legal resident of your state before filing for divorce there. If you have multiple registrations for civil unions or domestic partnerships you may have more complications to resolve. The state of Illinois requires 90 days of residency before filing for divorce. 

FAQ: How Much Does a Divorce Lawyer Cost?

While some divorces are amicable and simple processes, for many, a divorce will be frustrating and complicated. This can be particularly true for a married couple that was together before their marriage was legal. 

Divorce Basics

All states recognize no-fault divorce of some kind, meaning you are not required to explain to the court why your marriage is ending. Illinois abolished fault-based divorce in 2016, but the reasonings will still be considered in child custody and visitation rulings. During your divorce proceeding, the judge will decide on the division of marital property, rule over child custody and support issues, and establish alimony or spousal support payments when they deem it appropriate.

Property Division

A judge will decide how best to split up a couple's assets and liabilities during a divorce hearing. Same-sex couples who lived together before their marriage was legalized may face an unfair property settlement. 

If one partner buys an asset prior to their marriage, then the courts usually consider it to be his/her own property, and classify it as immune from property division in the divorce ruling. In some cases, judges will divide the assets a couple obtained prior to marriage if they were prevented from marrying due to discriminatory laws.

In any case, property division is usually decided by a judge who has some degree of discretion, so there isn't necessarily an ironclad rule saying that one party will maintain possession of everything they owned before the marriage.

Custody and Child Support

When a relationship ends poorly, the same people who supported marriage equality could turn around and use discriminatory parental rights laws against their ex-spouse. It’s particularly common when custody disputes involve same-sex couples. You may be able to avoid a contentious custody dispute if you develop an agreement with your partner regarding childrearing responsibilities.

Is the divorce process different for lgbtq couples?

Most people who wanted to get married before gay rights were legalized had no way to legally adopt their partner's children because they weren't yet considered legal parents under state law. In many cases, if the non-biological parent was never able to legally adopt the child, the court will not award them any parental rights including visitation. This can be a massive emotional blow to not only the parent who no longer has rights to see the child, but also to the child who is suddenly without a parent. 

With how new marriage equality still is, it can be difficult, if not impossible, to predict how courts in different jurisdictions will handle child support in cases where a child was born to one parent in a same-sex marriage. Courts will automatically assume that a child born during a heterosexual marriage is the husband's. Courts would ideally take the same view with same-sex spouses, but this could vary wildly depending on jurisdiction.

Spousal Support

In cases where couples were together for several years before they could get married, issues related to spousal support and alimony may be complicated. A judge ruling over a divorce proceeding will determine if there is a financial need and ability to pay before determining spousal support. It is largely left to the judge's discretion and state-level guidelines.

Learn More: Can I Get Alimony After a Divorce Is Finalized?

In general, the longer the marriage lasts, the greater the likelihood that a court will order one partner to pay alimony to the non-earning or lesser-earning partner. How do courts rule in cases where the relationship lasted for a decade or more, but the partners were legally prohibited from marrying before the 2015 Supreme Court ruling? It is difficult to say, as these cases are only just starting to play out in courts across the country.

In some cases, the judge may use their discretion to add the unmarried rules to the marriage before deciding on spousal support, but in others the judge won't consider the relationship outside of the marriage. The state of Illinois does not recognize "palimony", or alimony payments for long-term unmarried partners. 

Settlement Agreements

Working with your spouse to settle the divorce outside of a court is often the best way to manage a divorce. Courts often offer mediation services to couples that allow them to discuss the outcome of their divorce. A judge will carry the authority to rule on property division, support payments, and custody issues, but mediation allows the couple the opportunity to make decisions that benefit their specific family situation. Drafting a settlement agreements is nearly always the easiest and cheapest opportunity to decide your divorce outcome. 

Talk to an Experienced Divorce Attorney

In any divorce case the best thing you can do to protect your rights and property is hire a qualified divorce attorney. Even if you and your spouse decide on how to separate property and draft a parenting plan in an out-of-court settlement, it may be in your best interest to use the services of a LGBTQ divorce lawyer.

Gay couples and lesbian couples face the same divorce issues as straight couples, with possible extra complications coming into play from relationships that predate marriage equality rulings.  No matter how complex your situation is, the attorneys at Tommalieh Law can help you navigate the details of divorce law. Contact us today to schedule a free case consultation to see how we can help you.

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