Currently same sex marriages are legal in 30 states and the District of Columbia in the United States. Eighteen states explicitly ban same sex marriages, and 2 are silent on the issue but silence equals no same-sex marriages in those states. Basically the divorce laws are the same regardless of sexual orientation within a state that allows for same-sex marriages. But there are some differences in same sex divorces to be aware of.
Here is an outline of 8 things you need to know about same sex divorce:
1. If you are a same-sex couple who were legally married and live in a state that does not allow for same sex marriages, you may not divorce in that state. As mentioned, currently 18 states have a ban on same sex marriages and 2 states do not have a ban but do not allow, so the law is in flux in those states. But, for example, if you are a same sex couple who were legally married in California and move to Florida which bans same sex marriage, you will not be able to divorce in Florida.
2. Closely aligned with the first difference is that there are residency requirements before one can divorce. This is true regardless of sexual orientation. But for a same sex couple married in California and living in Florida, one party would have to establish the residency requirements in a state that allows for same-sex marriages/divorce before they can get divorced. The residency requirement in California is 6 months.
3. If you are a same sex couple who are married but separated and living in Ohio and one of the couple travels to Iowa, which does not recognize same sex marriage/divorce, the ex may be the only person allowed to make medical decisions. Because even though the marriage is not recognized in Iowa for divorce and other purposes, for medical decisions it is.
4. If you are a legally married same sex couple you will not be able to remarry unless you are divorced. In the states that recognize same-sex marriage if you marry again, the first marriage will be considered void and you could be subject to a bigamy charge. Of course if one of you moves to a state that does not allow for same sex marriages you cannot be married anyway, but if involved in a domestic partnership the bigamy laws could come in to effect in the states that allow for same sex marriages/divorce.
5. The laws around same sex marriage are constantly changing so if you are legally married in a state that allows for same sex marriages and move to a state that does not, if the laws in that state change and allow for same sex marriages, then you are subject to the same rights and responsibilities of all married couples.
6. Same sex couples often have multiple statuses, marriage being just one. With my ex we were first married is San Francisco and that marriage was voided. Before that we entered into a registered domestic partnership and I had to dissolve a prior domestic partnership that I had. Then on October 18, 2008 we were married and that marriage was upheld. So in the petition served on me she is seeking dissolution of the marriage and the domestic partnership. In addition to those two relationship statuses, there could also be a civil union, limited domestic partnership, reciprocal beneficiaries and designated beneficiaries. All of these should be dissolved in the same proceeding.
For more information, the National Center for Lesbian Rights has resources and public education for attorneys and non-attorneys.
7. With child custody issues the laws are the same for same sex and heterosexual couples. But the courts theoretically do not have have biases when there are two moms or two dads. In my instance I want joint custody and physical custody for half the time. So it’s working out a schedule in court that we were unable to work out to date.
8. I am not sure what percentage of heterosexual couples have a pre-nuptial agreement, but since the world of marriage for same-sex couples is only a few years old, I don’t know of any same-sex couples, including myself who have a pre-nup. As marriage equality becomes universal in the United States hopefully more folks will have pre-nups to guide in the case of a break-up.
Peace, love, compassion, and blessings.