What are the Same-Sex Divorce Laws

With numerous states now allowing same-sex marriage it is only a matter of time before they are also facing same-sex divorce. We do not wish to see anyone get divorced (unless it will make them and their family happier) though it will be an eventuality for some same-sex couples in our very near future. As with all relationships there are ups and downs. At some point a person or the couple may decide it’s time to move their lives in a different direction. They though should know what their legal rights are in these situations. For same-sex couples this is a whole new set of information they should talk with a Family Law attorney about.

The key to same-sex marriage is Equality under the Law. People want the right to get married. This has been the legal right for men and women for centuries, and starting very recently has been the legal right for same sex couples as well. Part of being seen is equal is being afforded the same legal rights in both marriage, AND in divorce.

Now that the Supreme Court ruled the Defense of Marriage Act (DOMA) was unconstitutional it upheld the laws for both marriage and divorce when it comes to same sex couples. What this means for you depends on a number of things including which state you live in, which state you got divorced in, what are your assets, etc. As with any divorce there are a lot of factors which contribute to the outcome. For same-sex couples however it gets even more complex. And the laws are changing all the time which could very well impact a lot of cases. So if you read any news or articles proclaiming advice about divorce, think twice before acting on that advice.

And you should be aware divorce laws vary from state to state, and even more so when it comes to same sex divorce. As of this writing some states recognize these marriages, while others don’t. Hopefully this will change over time though for now it’s a reality that will impact at least some percentage of these couples. So if you get married in one state, you may have trouble getting divorced in another. This sounds trivial, and even somewhat silly, but if you are getting divorced and there are assets involved it could become a very complex legal and financial situation.

Even in states which do recognize these marriages there may be federal tax consequences to consider. This is becoming an increasingly complex area of the law due to the different issues that span both the State and Federal level. As more and more of these cases are heard before the courts more case law will be set. So what may be facts about a case one day, could change the next.

Family Law Attorney Same-Sex Divorce

If you are in a marriage, either between a man & woman, or you are a same-sex couple, and are seeking legal advice about marriage or divorce Contact Us to discuss your legal rights, and how you can best prepare yourself for your future. For anyone looking to get divorced we do our best to listen to your situation and provide legal advice which we hope matches your long-term needs.

California Same-Sex Divorce

If you are seeking a California same-sex divorce then you may also want to read the Judicial Council of California law site regarding the rules around divorce. You can learn things including the fact that to get divorced in California you or your spouse must have lived in the state for at least 6 months. And one of you must have lived in the county where you are seeking the divorce for at least 3 months. If you don’t meet the time requirement you can file for legal separation, and then seek an “amended petition” once the 6 months have passed.

Interesting side note which illustrates the complex nature of these new cases. If you got married in Delaware, and now live in a state that doesn’t recognize same-sex marriage you can still get married in that state. This was written into the Delaware law:

“(f) All persons who enter into same-gender marriages that are solemnized in this State or are created by conversion from a civil union under the laws of this State consent to the nonexclusive jurisdiction of the Family Court of this State for all proceedings for divorce and annulment of such marriage, even if one or both parties no longer reside in this State, as set forth in § 1504 of this title.“


As with anything you read on this site please know the information above is not legal advice. If you need legal advice contact an attorney. And you may want to find an attorney who is close to your home or office. For example if you live in LA then seek out an LA Family Law Attorney.