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How same-sex divorce is different from heterosexual divorces

Ever since the Supreme Court ruled in 2015 that a commitment of love between two people can be equal through the recognition of same-sex marriage, there has been much celebration and relief among many. However, there is another side to marriage that is not so easily cheered, that same-sex couples can divorce as well.

The problem that many same sex-couples are running into is that with all this new equality being provided them, it may not be so equal when it comes to divorce.

Marital assets

One of the biggest aspects to same-sex divorce is figuring out how the couple’s joint assets should be distributed. It is a problem due to the length of time the couple has been together. Some couples have been together for over 20 years but were not able to legally marry until recently. If the laws were different when they first met, they may have been legally married for all of that time. Now that they want to divorce, there are no mechanisms in place to determining asset distribution in situations like this. It also will matter by which state the divorce takes place as different states have varying regulations based on the length of the relationship.


Even though same-sex marriage is recognized as a legal union at the federal level, there are still occasions that the legal status of the same-sex relationship can affect a divorce. Since couples in Massachusetts live in a state that recognizes same-sex marriage, it is not a problem here. But divorcing couples in any of the 35 states that do not recognize same-sex marriage will need at least one spouse to establish residency in a jurisdiction that does for a legal divorce to be obtained.

Child custody

No matter the type of marriage, child custody can be difficult to sort out. Same-sex custody can throw a few more wrinkles into what may be a contentious and stressful circumstance. For example, if the couple did not officially adopt a child prior to their marriage, this can pose trouble with both visitation and child support. There can also be issues of one parent being the biological parent that may take priority in court. Also, if only one of the couple is the legal parent, it may restrict the second parent from both custody and visitation.

If you are in a same-sex marriage and considering divorce, you may have questions that are unique from those of an opposite-sex marriage. It is best to speak with an attorney who has worked with same-sex couples in the past and is knowledgeable about this type of divorce.

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