Knot Good -- Divorce In Same-Sex Marriages Can Be Problematic

Posted on: 12 July 2016

Thanks to the 2015 U.S. Supreme Court ruling that made all state bans on same-sex marriage unconstitutional, tying the knot for gay and lesbian couples has become much easier. For many couples, the freedom to walk down the aisle has led to numerous fairy tale weddings. But -- as with different-sex marriages -- some of these relationships have also hit the rocks of reality, and couples who once yearned to marry are now dreaming of divorce. Although the rate of divorce at one percent per year for gay couples is still lower than the two percent for heterosexual couples, it is expected to rise as more gay couples tie the knot. And, unfortunately, gay couples are realizing that as hard as it was for them to get married, divorcing could be equally problematic for a number of reasons. 

Dividing Up Property

Because same-sex couples were not allowed to marry legally in a number of states for so many years, many gay and lesbian couples lived together for years, acquiring property and goods. So when these couples finally do decide to divorce, there could be contention over what is and isn't marital property. One party, for example, might consider all of the couple's property to be marital, while the other might consider only the items purchased during the marriage to be marital.

Then, of course, there is the legal view. For example, in a common-law state, such as Alabama or Kansas, a couple who cohabited with one another for a designated period of time would be considered legally married, even if they hadn't formalized the union with a wedding ceremony. While in a civil state, there has to be an official marriage ceremony in order for a couple's union to be considered legal. 

Custody Rights

Custody issues can be especially difficult in same-sex marriages because a couple's child may only carry the DNA of one parent. So that parent may claim that they have more rights than the other because they are the only true biological parent. Unfortunately, in many states, the laws regarding who is a legal parent and who is not have not caught up with same-sex divorce. Examples include:

  • In January 2016, a woman in Virginia had to fight for custody because her soon-to-be ex-wife claimed that she didn't qualify for spousal rights because she was not listed on the birth certificate of the child. She had raised the child as her own, but had not been listed on the birth certificate because same-sex marriage was not recognized in the state at the time the child was born. 
  • In 2014, a woman in New York was denied joint custody by the courts because state laws only consider the biological parent to be the child's true parent. 

In addition, a non-biological and/or non-legal parent -- no matter how good a parent they may actually be -- will have a very difficult time winning sole custody of a child over a legal parent and/or biological parent. 


To some people, pets are sometimes viewed as furry children. So it's probably not surprising then that many gay -- and straight -- couples often fight for custody of their pets during a divorce. It's not uncommon, in fact, for a judge to have to rule on a visitation schedule for a very beloved pet. 

Hire an Attorney 

Because custody and property division issues can be very challenging, especially in an acrimonious divorce, it is very important that an individual considering same-sex divorce hire an attorney. It is especially important to choose one with experience in this particular area of the law, like a lawyer from the Law Offices of Lynda Latta, LLC, and who stays informed on the constantly changing rulings regarding same-sex divorce. 


answers to legal questions about child custody

Child custody cases are difficult for the families, the lawyers and judges involved. Finding the best solution to a difficult problem while protecting the kids from as much emotional distress as possible isn't something that anyone ever wants to be a part of. Unfortunately, many marriages end badly and the parents have to come up with a custody plan that will be most efficient for the kids and the rest of the family. My blog is all about the legal aspects of child custody cases. You will find the answers to many of the questions that you have about the most difficult thing you will ever have to go through.