Navigating Gay Divorce
Same-sex or same-sex marriage was legalized in June 2015. Of course, gay divorce didn’t take long to follow. Here’s everything you need to know about gay divorce if your gay marriage fails.
A Brief History of Same-Sex Marriage/Gay Marriage
Before we delve into the details of gay divorce, let’s first provide a brief overview of the fight for marriage equality in the United States.
DOMA
DOMA stands for Defense of Marriage Act. The law was signed into law by then-President Bill Clinton on September 21, 1996, after passing both the House and Senate. DOMA is divided into three sections:
Section 1: Name of the law as the “Defense of Marriage Act.”
Section 2: No state is required to respect or treat a same-sex marriage recognized by another state, territory, possession or tribe as a marriage with all the benefits and obligations that a heterosexual couple receives from a legal marriage.
Section 3: The word “marriage” refers only to a legal union between a man and a woman and “spouse” refers only to members of the opposite sex who are a wife or husband.
After the law was enacted, lawsuits and repeal efforts began. There were two cases before the United States Supreme Court that changed sections of DOMA. The case of United States v. Windsor Section 3 was struck down by the Supreme Court on June 26, 2013. With this victory for the gay community, an even larger groundbreaking case would gain momentum after it was first launched in 2012.
Obergefell v. Hodges – 2015
Between 2012 and 2014, plaintiffs in federal district court cases spanning four states led to the landmark civil rights case Obergefell versus Hodges. A disagreement between the district courts regarding the constitutionality of DOMA meant that the case would be sent to the Supreme Court. In the Supreme Court, the justices ruled in favor of the plaintiffs, finding that same-sex people have fundamental constitutional rights that require states to recognize their marriages as legally binding outside of jurisdictions throughout the country. It was a well-deserved victory for same-sex marriage, which by then had been legalized in 36 states as well as Guam and Washington, DC. DOMA Section 2 was officially repealed on the grounds that it violated the Due Process Clause and the Fourteenth Amendment, the Equal Protection Clause. Although most states complied with same-sex marriage and licensing, not all did so quickly. Alabama and Texas held out as long as they could, but gay marriage is officially legal in all states, including the territories.
When did gay divorce begin?
No, we’re not talking about the play Gay divorce from 1932. We are talking about the first gay divorces that took place after gay marriage was legalized.
Marriage recognition by state vs. federal government
Before the Supreme Court decision in 2013 United States v. Windsor, Same-sex couples who decide to dissolve their marriage could be left with no legal recourse. Currently, only states that recognize gay marriage as legal would allow divorce proceedings. So if a couple married in a legal state but then moved to an illegal state, they would not be able to divorce in their new state. This could result in a costly civil lawsuit to resolve property and monetary disputes. In May 2013, Delaware and Minnesota legalized gay marriage and allowed nonresident gay couples to legally divorce through their courts. It was only after the landmark Obergefell Case that same-sex married couples could file for divorce in any U.S. state. Dealing with a gay divorce doesn’t have to be costly if you approach it responsibly. Learn about the nuances of gay divorce Money-conscious ex-wivesKayla Sloan and Shanah Bell. These women speak candidly about their marriages and subsequent divorces, providing tips and resources to help you navigate your gay divorce without going broke.
Navigate to divorce on the Queer money® Podcast with Cash Wise Ex-Wives:
Divorce rates: same-sex vs. opposite-sex
Without looking closely, which do you think has a higher divorce rate: same-sex or opposite-sex marriages? Is there a difference between gay and lesbian divorces? There are. In fact, lesbians are twice as likely to divorce as gay couples. Opposite-sex marriages are somewhere between lesbian and gay marriages, which end in divorce. These statistics also agree with a 2015 study Journal of Family Psychology. The study followed 190 couples for five years after adoption to examine relationship dissolution. Of the 15 relationships that ended, 12.3 percent were lesbian, 8.3 percent were heterosexual and only 2 percent were gay couples. One reason for the high divorce rate among lesbians is the speed at which the relationship develops. It’s not uncommon for lesbians to move in together and get married within a year of meeting each other. Other reasons for the high divorce rate:
Unrealistic expectations
Ignore potential red flags before legalizing it
Filing for divorce without attempting to resolve the matter (lack of pre- and post-marital counseling)
Some of the best advice we can give you, regardless of your sexual orientation: Take it slow before you decide to walk down the aisle. Have conversations to find out where you both stand in terms of careers, location, children, and finances.
There are so many positive things that can come from divorce with the right attitude and approach. – Cash wise ex-wives Kayla SloanClick to tweet
How does divorce differ between married partners, civil partners and domestic partners?
In the United States, same-sex marriage enjoys all the rights and protections of same-sex marriage. Before we look at the differences in the divorce process, we first differentiate between the terms civil partnership and civil partnership:
Civil partnership: A civil union, also known as a civil partnership, is recognized as a same-sex “mostly equivalent” marriage in many places, in places where same-sex marriage is not valid. Whether all or just most marital rights are recognized depends on the location. In some countries only same-sex couples are allowed to enter into a civil partnership, in others any gender combination is permitted.
Domestic partnership: a union of two people who live together and lead a life together. This partnership does have some of the benefits of marriage, but not as many as a civil partnership. To make matters even more confusing, some jurisdictions consider a domestic partnership to be the same as a domestic partnership, while others create a greater divide. In 2013, the U.S. military allowed service members to enter into domestic partnerships with their same-sex partners in order to gain access to certain benefits previously only possible under same-sex marriage.
The pdf from the National Centers for Lesbian Rights provides detailed, state-by-state information to highlight partnership opportunities and restrictions. When it comes to divorce, it depends on the type of partnership and how many legal connections a couple has. In some states, you could be considered a civil union and domestic partnership. To make matters worse, you may not be able to legally dissolve a union if you joined the union in one state and move to another state that does not recognize your union. Some states automatically converted civil unions and civil unions into marriages once same-sex marriage became legal in the United States. New Jersey, Illinois, Hawaii, Colorado and Vermont are the only states that still recognize civil unions. In these cases, you would begin normal divorce proceedings to dissolve the union. It is important to note that in order to no longer be legally bound to the other person, you must go to court to dissolve all unions. This can be as simple as filling out a form or as complicated as going through a normal divorce process with division of assets and assets. You don’t want to be in a position where you’ve given up on a partnership only to find out that they still have the right to act on your behalf in some capacity. For example, if you are injured and are unable to make medical decisions for yourself and are considered next of kin under the law. Because marriage and partnership laws are constantly changing, it is best to speak with a knowledgeable same-sex marriage attorney before beginning the process to determine the best course of action.
What if we were married before it became legal nationally?
The type of union you entered into, the state in which you formed the union, and when you formed the union make a difference. Here’s how you would dissolve a marriage, partnership or partnership based on these factors.
Multiple registrations for civil partnerships or registered civil partnerships
Depending on your state and the time period in which you entered into your partnership or union, you may have multiple registrations for your relationship. As explained in the last section, you must ensure that you cancel any registration with the courts to completely eliminate all legal ties to your ex-partner. If you entered into a civil partnership in one of the states that still recognize civil partnerships, but then got married in another state, you will likely have to dissolve the partnership and marriage. The same could also apply to states that still recognize domestic partnerships:
California
Oregon
Maine
Hawaii
District of Columbia
Nevada
Division of assets acquired in civil partnerships and civil partnerships
California, Nevada and Washington are considered community property states and require a 50/50 division of joint property and assets created during the partnership, just as in a marriage. These states do not recognize registered civil partnerships, so the division of assets would have to be determined when the partnership is dissolved. In states that still recognize civil partnerships, the division of assets is tantamount to the dissolution of a marriage. In community property law states, the split is typically 50/50, except for property owned by only one spouse. An exception to this rule is when there is a written agreement that clearly sets out the ownership structure. The remaining six community property states state:
Arizona
Idaho
Louisiana
New Mexico
Texas
Wisconsin
For other states, equitable distribution is part of the divorce process. The division of property is done fairly, but cannot be considered equal. All assets must be legally disclosed as part of the dissolution process and are usually divided by the judge so that each partner receives their fair share.
Find out if money is ruining your divorce Queer money®:
Dissolution of the assets of a civil partnership
Domestic partnerships are only recognized in five states in the United States and are not recognized at all at the federal level, except for those converted to marriage. In states with community property laws, the 50/50 community property division applies as noted above. In equitable distribution states, domestic partnerships enjoy joint ownership of property and would require that assets be divided in a “fair but not necessarily equal” manner.
Dissolution of the assets of a civil partnership
The liquidation of assets from a civil partnership works like a marriage and is determined by the state. Community property vs. equitable distribution remains the same, except for states that do not impose a legal requirement for equitable distribution. Generally, property acquired prior to the partnership remains with the individual and community property is divided according to the laws of the state in which the partnership is dissolved.
Residency Requirements
Residency requirements vary from state to state and may or may not impact divorce proceedings from a marriage, domestic partnership, or civil union. For example, in California, dissolution of a marriage requires six months of residency, whereas dissolution of a domestic partnership is not required. In Vermont, there is no residency requirement for ending a civil union, but six months’ notice is required for marriage. It is best to check with the state in which you reside or plan to file for divorce to determine whether there is a residency requirement for the dissolution of your marriage, marriage or partnership.
What are the basics of a divorce, a gay divorce, a straight divorce or any other divorce?
With gay marriage now legal throughout the United States, gay divorce looks almost exactly like divorce without marriage. Here are the basic steps you can follow if you want to initiate the divorce:
Submit the necessary documents to the courts.
If necessary, ask for temporary orders (child support, spousal support, and custody).
Let your spouse listen and wait for the answer.
Negotiate an agreement (mediation or settlement conference).
Go to trial (if necessary).
Finalize the divorce decree.
Although every state is different, these steps can serve as a guide for the process of your divorce. But does the reason for your divorce matter? In some states this is the case.
No-fault divorce
In a no-fault divorce, one spouse can file for divorce without the other spouse without giving a specific reason. All states allow a no-fault divorce, and you can simply state that you didn’t get along. This can be referred to in different ways:
Irreconcilable differences
incompatibility
Incurable breakdown of marriage
Some states require spouses to live apart for a specified period of time, up to a year. Once you have met this requirement, you can initiate a no-fault divorce.
Fault Divorce
A fault-based divorce is handled differently than a no-fault divorce. Fault means that there are reasons other than lack of understanding that require a divorce. Only certain states allow fault-based divorces:
Alabama
Alaska
Arizona
Arkansas
Connecticut
Delaware
Washington D.C
Georgia
Maryland
New Jersey
new York
North Carolina
South Carolina
Vermont
Virginia
In a fault-based divorce, the applicant must prove that he or she accuses his or her spouse of fault. Reasons for a no-fault divorce include:
Adultery
Task
Detention
cruelty
abuse
In order to pursue a fault-based divorce, a separation may be required, just as in a no-fault divorce.
Additional complications in determining the true length of a relationship compared to the legal marriage date?
Before gay marriage was legal, many couples opted for civil unions or civil unions. Others decided to simply stay together in a committed relationship and get married when their state allowed it or once it became legal in 2015. The length of the relationship before marriage could lead to complications when filing for divorce. For example, if a couple was together for ten years before marriage, they may have commingled money and assets or even had children together. If this is the case, the judge may decide to use these additional ten years as part of the marriage. This could change the entire outcome of the case when it comes to dividing assets, assets, and determining alimony (spousal support). The result could also have different tax implications at the federal level. Each state has different guidelines to follow and there is no guarantee that there will be enough evidence to justify inclusion for the entire duration of the relationship. However, this is something to think about if you are considering a divorce.
See how LGBTQ money is different in this partnership with Prudential Financial:
Additional complications for transgender and non-binary people?
Transgender and non-binary people face their own complications during the divorce process, regardless of when they transitioned or came out. In the case of James and RebeccaJames’ gender identity was put on trial and made public. For someone who wants to keep their gender identity a secret, this can have devastating psychological problems. If the spouses cannot cooperate in the divorce and have to go to court, there could be unwanted interference with the transgender or non-binary spouse’s personal information and identity.
Asset division
If an agreement is not reached on how to divide the assets before the divorce process, the case will likely end up in court if an agreement cannot be reached in mediation. All debts and assets owned by each person and jointly will be included in the divorce proceedings. The length of the relationship and marriage also plays a role in the final divorce decree as to who gets what.
Division of marital assets
Depending on where you live, the division of assets and marital assets can vary and not everyone will favor one spouse or the other. Individual property such as cars, houses and other investments brought into the marriage must be taken into account. If no gains or benefits were made during the marriage, these may remain with the person. If this were the case, they could be split between the two. The joint property can be determined by the spouses if they can mutually agree. If both agree, most judges will agree to the division or make some changes if there are circumstances that justify it.
Division of debts
Where you live (community property state or not) can also determine how debts are divided in a gay divorce. Generally, all individual debts remain with the same person and the total debt should be divided fairly between the two. This is what the court believes is fair based on a number of factors and may not be what the spouses believe is fair.
After my divorce, my finances were extremely tight…and there were many nights where I cried a lot because I didn’t know how I was going to pay for anything. – Shanah Bell from Cash Wise Ex-WivesClick to tweet
Custody and child support
Custody and child support in same-sex divorces can be difficult, especially if only one parent is considered the legal parent at the time of separation. If the spouses cannot decide for themselves, they could be in for a rude awakening in court, depending on where they are and who the judge is. The decision is easier for couples who adopted together or if both spouses have guardianship of the child(ren). When children come into play, it is best to have an attorney draft a parenting agreement that sets out rights and responsibilities as well as custody and child support in the event the marriage ends in divorce.
How are children treated in a same-sex divorce?
As mentioned in the previous section, the guardianship of the children in question determines how the divorce and subsequent custody negotiations will proceed. Without a parenting agreement in place and if one spouse is not the legal parent, custody and child support could become a dispute. In the case of a joint adoption or if both parents are legal guardians, custody and support rights usually apply, similar to those in a divorce of a different gender. For a non-biological parent, the process can be messy and not work out in their favor.
Legal parents vs. non-legal parents
Although it is assumed that a legal parent has primary custody, this is not always the case in all cases. If the non-legal parent can demonstrate that they played a significant role in raising the child(ren), their right to some form of custody or at least visitation is stronger. Let’s look at two cases where the legal parent and the non-legal parent went through the gay divorce process.
Heatig vs. MacLean – 2008
In this case, two women decided to have children together after entering into a civil partnership in California and then moving to North Carolina. The defendant wanted to have children and became pregnant through artificial insemination, which resulted in the birth of opposite-sex twins. Both names were on the birth certificate, but only the birth mother signed. For three years, the couple lived together and looked after the children while the defendant stayed at home and the plaintiff worked. The working spouse has included the children in her health insurance and both spouses have signed medical and school enrollment forms as parents. The defendant also listed the plaintiff as the children’s guardian after her death. When the relationship began to deteriorate, the defendant took the children and moved out. They had an agreement about shared access to the children. Ultimately, the plaintiff filed for joint legal custody and won her case, even though she was not the legal parent.
Moriggia vs Catselo – 2017
In this case, neither woman was the child’s biological mother and they were not married but were portrayed as life partners. The plaintiff had a daughter who she brought into the relationship, and the defendant got herself pregnant with donor sperm and eggs for their child. Both women signed a conception agreement declaring them both equal, and both contributed financially to the process. The plaintiff was considered the parent until birth until the defendant changed her mind. Only the defendant signed the birth certificate, but they still presented themselves as a couple. The defendant assumed a primary caretaker role and both parties financially cared for the children. When they separated, the defendant seemingly separated the plaintiff from the child they had fathered during their relationship. There are many nuances in this case, but ultimately the plaintiff was able to file a motion for custody, but could only assert custody and not legal parenthood. The courts based this on the lack of a cohesive family unit, the unmarried parents and the plaintiff’s lack of adoption. However, the actions and intentions of the legal parents to act as a family unit contributed to obtaining custody.
What about gay support and divorce?
Alimony is the same as spousal support. If maintenance is awarded as part of a divorce, the higher-earning spouse must pay a monthly amount (or a lump sum) to the lower-earning or non-earning spouse for a certain period of time. Many factors are taken into account when determining support, including:
- Duration of the marriage
- Every single income
- circumstances of the child
- Expectations of each spouse
- Where the marriage began and where the divorce is filed
In a gay divorce, the question can be raised as to how long the marriage lasts compared to the length of a relationship. Sometimes a person can be awarded alimony based on the length of the relationship, which is called alimony.
Alimony payment
While palimonia is not common, it is far more common in same-sex relationships than in opposite-sex relationships, especially considering that gay marriage has only been legal in many states since 2015. A couple who have been together for several years may find themselves in a situation that warrants alimony payment. The term became known through a case from the 1970s in which a same-sex couple separated after years together and filed a lawsuit requesting financial support. She agreed to become a housewife while he supported her throughout their relationship. She ultimately won after providing sufficient evidence to support her consent. However, when awarding alimony, most states require clear written or oral contracts as well as:
- Significant income differences
- An implicit understanding of the agreement
- Sacrifices and contributions of the requesting party
- Oral promises or agreements
- Duration of the relationship
Tax consequences
The granting of alimony or spousal support could also have tax consequences. With the enactment of the Tax Cuts & Jobs Act of 2017 on December 31, 2018, the tax implications have changed. Spousal support is no longer tax deductible for the payer and no longer has to be reported as taxable income by the payee. This is bad news for many payers as they no longer have a deduction from their taxable income. This is a welcome change for many payees because they no longer have to list their support payments as a source of income.
Settlement Agreements
Although the judge has the final say in a divorce case, it is usually better to reach an agreement through mediation than to go to court. For one thing, it is much more cost-effective to reach an agreement than to face the judge. You will then also be at the mercy of the judge and may not end up with as favorable a result as you could have achieved if both spouses had reached an agreement in mediation.
What are the costs of a divorce?
The cost of divorce can be high, and that’s just the financial cost, not to mention the psychological cost that many face, especially if the divorce wasn’t something both parties wanted. This section discusses the financial costs of divorce.
What is the average cost?
According to TheStreet.com, the average cost of a divorce in the United States is $15,000 per person. Now, if the couple divorces amicably through an uncontested divorce and only has to pay the filing fees, that number drops to just $500. These numbers are the same whether you are straight or gay and are getting divorced. The amount varies greatly depending on whether an attorney is needed, the cost of filing and court fees, and whether or not other people such as financial advisors or forensic accountants need to be involved. When children are involved, when deciding on custody and other marital separations, you must assume that the divorce will be at least average, if not higher. There may also be custodial appraiser fees or other advisory fees that should be taken into account. Here you can get an idea of how much the costs might be.
Attorney Fees
On the low end, an uncontested divorce with an attorney can cost around $1,000. In areas with a higher cost of living, you can expect this number to be closer to $5,000. In contentious divorces, the majority of the costs are legal fees. If the case doesn’t go to trial, you can expect to pay about $2,500. If so, that number could rise to nearly $15,000 per case, rather than per person.
Court fees/filing fees
North Carolina has the lowest filing fee at just $75 for a full divorce. The highest state currently charging is $435 in California. Court fees also vary, not only by state, but also by city and county. Court fees may include copies and certified copies of court records, filing of motions and petitions. These costs can range from a few cents for copies to over $100 for archiving documents.
Fees for custody appraisers/appraisers and consultants
When a custody case becomes messy and the divorcees simply cannot come to an agreement, a custody evaluator is sometimes needed to make decisions in the best interests of the child or children. These fees also depend on the location and are usually paid to the depository appraiser on an hourly basis. According to Divorcenet.com, a county-provided appraiser can cost between $1,000 and $2,500. However, if a private appraiser is needed, the cost can be $10,000 or more.
Financial Advisor Fees
Finances are an important part of a relationship and become crucial in a divorce, regardless of whether you are gay or straight. Expect to pay a financial advisor between $100 and $400 per hour for their services in helping them determine a fair and equitable asset allocation. Some charge a flat fee, which can be $2,500 or more.
Forensic accountants
If one spouse believes the other is hiding money or other assets, a forensic accountant may be necessary. Their job is to keep track of accounts and do whatever is necessary to ensure all assets are included in the divorce process. Forensic accountants are not cheap; You can expect to pay more than $5,000 for their services. The longer it takes and the more information is kept hidden, the higher the price.
Private detective
The messier the divorce, the more likely it is that a private investigator will be needed. In this case, the hourly rate can range from $50 to $250 per hour or more. Some PIs work with a fee that can range from $500 to over $10,000. You may also have to cover administrative costs such as mileage, filing paperwork, travel expenses, and court appearance fees.
Are DIY divorces possible?
Yes, if both sides agree on the division of assets and debts, you can proceed with your divorce yourself. Things get more difficult when children are involved, but even then you may be able to just pay the court and filing fees and get out of the case without incurring a lot of debt. If you’re interested in going the DIY route, here are the basics of what to expect:
- Know which court to file your lawsuit with.
- Make sure you meet the state’s residency requirements, if applicable.
- Fill out the documents completely and objectively. Some states allow online filing of documents, which you can obtain from the court clerk.
- Sign forms in the presence of a notary.
- Make copies for yourself and your spouse and submit the original to the court.
- Present the documents with your application fees to the clerk. They stamp all copies and the original. The applicant is responsible for caring for the spouse. Please contact the clerk to determine the correct course of action in your county.
- You or your spouse should then create a settlement agreement that both parties must sign with a notary as a witness.
- Complete any remaining divorce documents, which may include custody, financial statements, affidavits, and court hearing requests.
- All parties will be notified of the court date. Be there on time so the judge can make sure both parties are on the same page. There the case can be closed and the divorce granted, or the next court date can be arranged.
- If this is true, make sure you obtain certified copies of the divorce decree or decree.
Pre-marriage period vs. post-marriage period
One way to make the divorce process easier and potentially less expensive is to enter into a prenuptial or postnuptial agreement. This is a document signed by both parties with at least one disinterested witness that details how the assets will be divided upon separation. Before marriage or civil partnership, a marriage contract or pre-marital contract is concluded. In contrast, a prenuptial agreement is concluded after the marriage or civil partnership has already taken place. Both parties must enter into the contract voluntarily and understand its contents. It must be written and signed by both spouses. It is recommended that you retain a lawyer for each side to help execute or at least review the document before signing. These agreements may specify what happens in the event of death, how a separation is imminent, or how the spouses’ rights will be affected after the divorce, including alimony, maintenance, and property division.
How can prenuptial agreements make gay divorce more amicable?
Although not always pleasant to think about, pre- or post-nuptial agreements can help avoid the time and expense of divorce proceedings. They also clearly state what each spouse can expect or give up if their marriage ends in divorce. Such agreements can ease the stress of a future divorce and even make gay divorce more amicable than it would have been without an agreement. If you’re already married and wondering if a prenuptial agreement is right for you, be sure to check out Episode 78 of Queer money®.
Jennifer Wray of Harris Law continued Queer money®:
Mediation
Mediation is another way to save money and make gay divorce more amicable. If both parties can come to an agreement, they will save each other the expense and time involved in the process of finalizing their divorce. In the end, divorce will almost always be an expensive way to end a relationship if you can’t get it done through mediation.
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Mandy Sleight is a professional freelance writer who also provides editing and proofreading services to a wide range of clients. Because of her vast experience, her work has been featured in Kiplinger, Market Watch, Money Geek and other major publications. If you would like to contact Mandy, you can find her on Facebook or LinkedIn or at Contact me via the contact page on your website.