7 Ways Divorce May Differ for LGBTQ+ Couples

Divorce is inherently challenging for all couples. However, within the LGBTQ community, there are unique considerations that can crop up during the divorce process and related family law matters.

New York State officially recognized same-sex marriage on July 24, 2011, following the enactment of the Marriage Equality Act. In a 2015 landmark decision, the United States Supreme Court extended this recognition nationwide—a pivotal development for LGBTQ couples across America.

Consequently, married LGBTQ couples now possess equal rights and responsibilities as their heterosexual counterparts concerning marriage. This includes the legal right to petition for divorce.

Similar to other significant milestones in civil rights history, longstanding inequality within judicial systems can render same-sex divorces more complex. To safeguard your interests effectively during an LGBTQ divorce, be sure to acquaint yourself with any potential complexities that may arise.

Below are seven key ways divorce can differ for LGBTQ+ couples.

  1. Asset Division

    One key difference is asset division. For example, depending on your jurisdiction, the distribution of assets like real estate, joint assets, inheritance, and retirement accounts acquired before marriage was legalized could require expert guidance, particularly for couples who have been in a longstanding relationship, domestic partnership, or civil union before legalized marriage.

  2. Child Custody

    Child custody is another important factor to consider. For LGBTQ couples who have children through surrogacy, adoption, or donor insemination, complications can arise during divorce if only one partner is legally acknowledged as a parent. Non-biological parents may find themselves with diminished parental rights compared to their biological counterparts. Judges often favor the biological parent in custody arrangements unless both partners have secured legal recognition as parents through court orders, adoption proceedings, or official declarations of parentage.

    To safeguard parental rights for both partners in an LGBTQ relationship with children involved, both partners should seek to establish legal guardianship when possible.

  3. Prior Relationship Status

    For LGBTQ couples who entered into a civil union or domestic partnership prior to the legalization of same-sex marriage, unique issues can arise during divorce. For example, a registered domestic partnership is automatically terminated in New York City upon marriage. However, this is not uniformly the case across all jurisdictions.

    Some states do not dissolve previous partnerships when couples marry, potentially leading to multiple concurrent relationship statuses. Be familiar with the laws in your state, and consult with an experienced LGBTQ divorce attorney if you have concerns in this area.

  4. Spousal Support

    Recent changes in state laws regarding same-sex marriage may also affect the recognition of spousal support. The length of a marriage remains pivotal for determining eligibility and the amount of such support. Same-sex couples were legally able to marry only recently in many jurisdictions, which means that the duration of their relationships might not be fully recognized for spousal support calculations.

    Many LGBTQ couples cohabited as married partners long before receiving official recognition from state or federal authorities, raising families and accumulating joint property along the way. States vary widely in addressing spousal support for such situations.

    Some jurisdictions exclude any pre-marriage periods when determining the length of a marital relationship relevant to spousal support. Others may take into account periods during which individuals were part of a domestic partnership or civil union. Understanding these nuances underlines the importance of consulting experienced legal counsel who is knowledgeable about jurisdiction-specific regulations concerning same-sex marriages and divorces.

  5. Child Support

    Child support is another important consideration for LGBTQ+ couples going through a divorce. If a non-biological parent has not been legally recognized as a parent, they may bear no child support obligations, thereby imposing the full financial burden of raising the child on the biological parent.

    Potential income disparities can cause issues in cases where parents share equal, 50-50 custody of their children. Like child custody matters, the best route to resolving these issues is for both partners to secure legal parental rights.

  6. Jurisdiction

    LGBTQ couples must be mindful of jurisdictional considerations when pursuing divorce. While federal law presently acknowledges same-sex marriage and divorce, state laws diverge and may encompass additional stipulations or requirements. For example, LGBTQ couples may need to initiate divorce proceedings in another state if their matrimonial union occurred in a state that did not acknowledge same-sex marriage. Be sure to become familiar with the laws in your state regarding divorce jurisdiction.

  7. Discrimination

    Discrimination is a key issue that LGBTQ+ couples may face during the divorce process. LGBTQ+ couples may face discrimination from judges, court officials, or even their own attorneys. This can manifest as biased treatment by court officials or challenges in securing legal representation proficient in handling LGBTQ-specific issues. It is crucial for LGBTQ+ couples to work with an attorney who is supportive and knowledgeable about LGBTQ+ issues.

    From asset division to child custody, LGBTQ+ couples face unique challenges that require the help of a skilled attorney. It is important for LGBTQ+ couples to understand their legal rights and work with professionals who are knowledgeable about LGBTQ+ issues to ensure a fair and equitable divorce process.


Naomi Schanfield

Naomi Schanfield concentrates on all aspects of matrimonial and family law, including, prenuptial and postnuptial agreements, divorce, equitable distribution, child custody and visitation, support matters, family offense disputes, and domestic violence.

To connect with Naomi: 212.682.6222 | Online

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