Two broken golden wedding rings on top of paper reading divorce

Issues in Same-Sex Divorces

Law Office of Shelly Jean John May 19, 2022

Although the divorce process is largely the same for both heterosexual and same-sex couples, there are a few unique challenges the latter may face and the former may not. As the path to marriage and parenthood for same-sex couples has evolved over time, some laws and stipulations make obtaining a divorce a bit more complex than it might be for heterosexual couples. 

If you and your spouse are considering a divorce, make sure you know what types of issues you might have to overcome as a same-sex couple. My firm, the Law Office of Shelly Jean John, has the knowledgeable legal guidance to help same-sex couples navigate the complexities of divorce. I’m available to discuss your unique situation and help you understand considerations that must be made in same-sex divorces. My firm is proud to serve clients across Ontario, Riverside, and San Bernardino County, California.

Same-Sex Marriage in California

Before 2015, when the U.S. Supreme Court granted same-sex marriage legal throughout the whole county, California already had made same-sex marriage legal in 2013. When allowed in all 50 states, marriage privileges were granted, including social security, insurance, and tax advantages. In California, the law centers around “no-fault” divorces, meaning you can legally get a divorce without having to prove reasons for a divorce. 

Common Issues in Same-Sex Divorce

Despite some advances in the social and legal acceptance of same-sex marriage, there are still some unique issues common to same-sex divorce.

A couple was together before same-sex marriage became legal but that time isn’t taken into consideration

Like many opposite-sex divorces, the length of the marriage can affect many aspects of divorce, including alimony, child custody, and division of assets. It’s important to understand that the legal marriage date isn’t the only thing considered in legal divorce decisions–because many people were together before 2013, judges take into account the relationship length, move-in dates, shared assets during that time, and other details.  

Deciding community/separate property when assets were acquired before the legal marriage date

In same-sex divorces, the courts may see cases where a couple has been together for several years but has only been legally married for a short time. It requires a different approach than what they usually do with asset division, so it can be a slightly more complicated process.

The non-biological parent never adopted their spouse’s biological child

Child custody decisions can be unpredictable due to the judge applying a subjective “best interests of the child” standard. This is even more complicated in same-sex divorces. There is no longer a presumption that both parents are the biological parent, and even if the couple had a child together with the assistance of a surrogate parent, the parent with no biological ties to the child may be denied parental rights if they did not legally adopt the child. 

Qualifying for alimony can be based on time together but again...pre-marriage time together may not be factored in

Alimony is another complicated topic in same-sex divorce. Judges may look at spousal incomes, length of relationships, or others. One option a judge may offer is palimony, which is financial support for couples that aren’t married. 

Tax issues

Legally married same-sex couples are required to file their federal returns as “married,” but they have had to file their state returns as single or head of household status if their state did not recognize their marriage as legal. With gay marriage legalized in California, same-sex couples will be filing using the married status for their state returns as well. While a combined return offers a lower tax bill in most cases, being married for tax purposes is not always beneficial.

The Importance of Skilled Legal Counsel

Filing for divorce can be an emotional situation, especially when in same-sex relationships. Nevertheless, there are several essential considerations when divorcing same-sex couples. With my experience and in-depth understanding of the laws addressing family law cases involving same-sex divorce, and as an empathetic family law attorney, I can help guide you through the often complex legal proceedings. Contact my Ontario or Riverside, California, office today to set up an initial consultation.