In 2015, the United States of America declared that same-sex marriage is legal throughout the country through the Supreme Court Obergefell v. Hodges case. Same-sex spouses who were legally married in states that allowed same-sex marriage had difficulty getting divorced before this ruling.
A same-sex couple frequently moved to a state that didn’t allow the union after getting married in a state that did. Since obtaining a divorce in the state where they were married requires a certain length of residence, they would be unable to get a divorce.
Because of the ruling in Obergefell v. Hodges, same-sex couples have the right to marry anywhere in the U.S. and divorce anywhere in the U.S.
What Is the Difference Between Domestic Partnerships and Civil Unions?
Many couples entered into domestic partnerships or civil unions before the legalization of marriage for same-sex couples. Although these terms are often used interchangeably and are very similar, the two marriage alternatives are very different.
A domestic partnership is a committed relationship between people who live together but are not married. Couples in states recognizing this type of marriage alternative may register their relationship with the state to receive certain government benefits. Domestic partners share a residence, finances, and children as unmarried parents. Many same-sex couples entered into domestic partnerships before same-sex marriage became legal across the country.
A civil union is another legal status offered to couples at the state level. As a result, unmarried couples receive nearly all of the same benefits and protections as married couples at the state level but not at the federal level. Civil unions are considered to have hospital visitation rights, property rights, and adoption rights. Once again, these rights are only granted at the state level, and some states may grant rights that others may not. Before same-sex marriages became legal at the federal level, many same-sex couples entered into civil unions.
In states with marriage alternatives, civil unions are typically recognized as “legal marriages.” They have almost all the benefits of marriage without being legally married. On the other hand, domestic partnerships generally receive far fewer benefits, like being unable to request child support from a former partner.
Following the legalization of same-sex marriage in 2015, the following states converted their 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. The state legalized same-sex marriage in 2013, and civil unions became legal marriages;
- Vermont: Vermont legalized same-sex marriages in 2009, although civil unions were allowed by the state long before. Civil unions established before 2009 remain valid in Vermont, but new civil unions are no longer permitted.
How Is a Domestic Partnership Dissolved? What Should You Consider Before Filing For Divorce?
In order to receive some sort of benefits and protection, same-sex couples who could not legally marry often registered their relationship as a domestic partnership. These couples may encounter issues when attempting to dissolve the relationship, as some states do not recognize these types of relationships.
Different states have different procedures for dissolving domestic partnerships. It is generally the states that recognize such marriage alternatives that are able to dissolve domestic partnerships. Most states will permit relatively painless dissolution when no children are involved or if the dissolution is generally uncomplicated. If there are a lot of assets involved in the domestic partnership, or if children are involved, the state may require a more complicated dissolution process.
Despite same-sex marriage and divorce being regulated at the federal level, couples contemplating the process should check their state’s specific laws to determine what is required for divorce. The same applies when determining what is required to dissolve a civil union. To legally end a civil union, couples may be required to establish residency in the location where the union was performed.
When contemplating divorce, other factors to consider include, but are not limited to:
- Residency Requirements: Many states require that the couple resides in the state for a certain amount of time before they may file for divorce in that state. The requirement applies to heterosexual marriages as well as same-sex marriages. In most states, this requirement is maintained for at least six months. For a couple to file for divorce in a state, they must reside there for a minimum of six months;
- State Rules: As previously mentioned, each state has its own rules and requirements associated with filing for divorce. Examples include filing paperwork, arbitration, marriage counseling, and a trial separation period; or
- At Fault or No-Fault: Most states are considered to be what is known as no-fault divorce states. This means that neither party needs to prove that the other party is at fault for the divorce in these states. Irreconcilable differences would be an example of no-fault divorce. When a marriage fails, at-fault states will assign blame to one spouse, which could affect matters such as spousal support payments.
What Are the Tax Implications of Same-Sex Divorce?
State laws may indeed give same-sex couples the same divorce rights as opposite-sex couples, but state and federal laws interact to complicate the situation. The IRS announced that it would recognize same-sex marriages as married for federal tax purposes. The state in which the couple resides may not recognize the marriage and require each spouse to file separately.
In 2013, the Supreme Court overturned the Defense of Marriage Act (DOMA), allowing same-sex couples to receive federal benefits, including social security and federal tax benefits. Same-sex couples can transfer property free of federal taxation upon dissolution of marriage.
How Is Child Custody Determined in Same-Sex Divorce?
Generally, most states give custody of children to their mothers. As a result, laws relating to same-sex relationships tend to become more complex. When both spouses are female and legally adopt a child, they are both the child’s mothers. Neither spouse could be considered the child’s mother if both are males.
In addition, a court may not recognize shared custody if one spouse is the biological parent. Recognizing the non-biological parent’s relationship when adopting a child at birth is important.
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. State laws and rules regarding marriage and divorce vary greatly.
Therefore, it is best to consult with an attorney in your area, as they are more familiar with the laws specific to your state. Depending on the circumstances, your attorney can assist you in determining how to begin the divorce process and represent you in court.
