The Divorce Process

For same-sex divorcing couples, the process required to initiate and complete the divorce is, technically speaking, the same as it is for heterosexual couples. But, in practice, there are significant differences.Though the specifics vary from state to state, the general process for both same-sex and heterosexual divorce is as follows:

• The petitioner (the spouse requesting the divorce) must file a petition (complaint) for divorce in a state in which he or she has established residency, and may also file motions for certain temporary orders, for example, to prevent the parties from disposing of assets.
• The complaint and any motions must be served on the respondent (the non-petitioning spouse) and the respondent will be given time to file an answer.
• There may be a waiting period, which differs from state to state, between the filing of these initial documents and the beginning of discovery, to give the parties time to consider their actions and determine if reconciliation is possible.
•  Discovery will be taken during a specified period of time. “Discovery” is an information-gathering stage that involves the production of evidence relevant to all issues of the divorce. This can include the finances of the parties, valuation of assets, matters related to child custody and support, and even marital misconduct.
• At any stage of the proceedings, the parties may negotiate with each other and come to an agreement on any or all issues of their divorce. To the extent the parties can agree, court time and intervention will not be required.
• A hearing or hearings will be held regarding issues on which the parties cannot agree.
• Once the issues have been resolved, the court will enter a final judgment of divorce.

Alternative Dispute Resolution

Some states allow for mediation, arbitration, or collaborative divorce in lieu of, or in addition to, traditional court litigation.

Mediation: In divorce mediation, a neutral third party attempts to help the parties reach a settlement regarding some or all of the issues of their divorce. If an agreement cannot be reached, the parties will need to pursue their divorce in court, as described above. Even if an agreement is reached, the court must approve the agreement and enter a judgment of divorce.

Arbitration: In divorce arbitration, a third party takes the place of a judge. The arbitrator listens to the facts and then decides the case, just as a judge would. Although the parties can present evidence and make arguments, they have no say in the final decision.

Collaborative Divorce: In collaborative divorce, the parties attempt to reach a settlement with the assistance of a group of professionals. The court must then approve the agreement and enter a judgment of divorce.

Fault or No-Fault Divorce

Most states (including the 16 jurisdictions that grant same-sex divorce*) allow a petitioner to file for either a no-fault or fault-based divorce. A no-fault divorce petition states, in essence, that the parties can no longer get along and that their relationship is irretrievably broken.

The parties need not allege and prove specific grounds in a no-fault divorce, but they may be required to live apart for a specified period before a no-fault petition may be filed.  Connecticut, for instance, requires a couple to live apart for 18 months, and Maryland requires the couple to live apart for one to two years, depending upon the circumstances of the separation.

A fault-based divorce is one in which the petition alleges specific grounds for divorce. Each state has its own list of fault grounds that may be alleged. These can include such things as abandonment, mental or physical cruelty, imprisonment, or adultery.

The Glitches of Same-sex Divorce

The process described above is relatively straightforward for the average heterosexual couple. If both spouses reside in the same state, one files the petition in that state and the process begins. If each lives in a different state, the petitioner files in his or her state of residence.

But, the family court systems of the states that grant same-sex divorce were designed to deal with heterosexual divorce, so the issues unique to same-sex divorce have not been fully ironed out by these courts. This is particularly true in states that have only recently legalized same-sex marriage. (Minnesota, on the other hand, has eased the difficulty in that state by enacting a law stating that same-sex marriages will be treated, in all respects, as heterosexual marriages.)

Residency Requirements

The residency requirements for the filing of divorce is the first complication for same-sex couples. As most live in one of the 35 jurisdictions that will not grant same-sex divorces, at least one spouse must establish residency in one of the 16 jurisdictions that will grant such a divorce. See Residency Challenges for Same-sex Divorce for an in-depth discussion of these residency requirements.

As divorce laws differ from state to state, you will want to educate yourself on the law of the states that you consider viable options for establishing residency.

Tax Consequences of Same-sex Divorce

Despite the recent DOMA decision, the IRS is still free to deny certain tax benefits to same-sex couples living in states that do not recognize their marriages. See The DOMA Decision: What It Means for Legally Married Same-sex Couples.

This is because the IRS looks to a couple’s state of residency to determine if a couple is “married,” and, thus, entitled to tax benefits granted only to married couples. If the couple lives in a state that does not recognize their same-sex marriage, the IRS will see the marriage as non-existent and deny the couple the tax benefits granted to married couples.

This disparate tax treatment can have significant consequences for divorcing same-sex couples, particularly with respect to property distribution and support. When a heterosexual couple divorces, assets are transferred from one spouse to the other without tax consequences. The same sort of transfer from one same-sex spouse to another will be a taxable event if the couple resides in a state that does not recognize their marriage.

Similarly, the usual tax consequences of alimony and child support payments will not apply to same-sex couples living in such a state. Alimony is income to the recipient and deductible to the payor when the couple is recognized by the IRS as married. If a same-sex couple lives in a state that does not recognize their marriage, the IRS will tax the recipient and deny the payor the deduction.

The same problem occurs with respect to social security benefits that are granted only to married couples. The right of an ex-spouse to collect his or her former spouse’s social security if the couple was married for ten or  more years will be denied to the ex-spouse who lives in a state that does not recognize same-sex  marriage.

The unavailability of these tax exemptions to some, but not all, same-sex couples complicates the process of same-sex divorce (by requiring additional attorney and court time to argue and decide the issues) and results in inconsistencies among same-sex couples, as some will receive the tax treatment afforded to heterosexual couples and some will not.

Couples Who Were Married in More than One State

Unlike heterosexual couples, who marry in only one state, same-sex couples sometimes marry in several jurisdictions and often enter civil unions and/or domestic partnerships, as well. When these couples wish to part ways, all of these legal relationships should be dissolved. If even one is left intact, the rights and responsibilities of the relationship will continue to exist in any jurisdiction that recognizes the relationship as valid.

The ideal approach is to convince the court to dissolve all of your relationships in the same proceeding, though many of the complications involved in the dissolution of multiple relationships are relatively new even to courts that regularly grant same-sex divorces. One such complication results from multiple marriages of different durations.

The divorce law of the state in which you file may allow the court to consider the length of your marriage in its division of assets or the awarding of alimony, for example. If a couple has more than one relationship to dissolve and each is of a different duration, the court will need to determine which duration should apply.

As stated above in the context of differing tax treatments, length of marriage will also control a party’s right to receive an ex-spouse’s social security benefits. If one marriage is of a shorter duration than the other, the issue of which duration will control will need to be argued by the parties and ruled upon by the court.

A similar problem arises when a same-sex couple has entered a civil union or domestic partnership that was later deemed a marriage by the state in which the union or partnership was formed. Delaware, for instance, legalized same-sex marriage in 2013 and automatically converted to a marriage any civil union that was previously formed in that state.

Did the marriage begin when the civil union was formed or only at the moment Delaware law converted it to a marriage? Though the answer may seem obvious, the issue would surely be raised by the parties and require disposition by the court.

Grounds for Divorce

If you wish to file a fault-based divorce on the ground of adultery, you may need to determine if the state in which you file your petition defines adultery broadly enough to include an extra-marital relationship between persons of the same gender. Maryland, for example, defines adultery to include sexual intercourse, which, by definition, can only occur between a man and a woman. Thus, if you wish to file your same-sex divorce in Maryland, you will not be able to file on grounds of adultery.

Child Custody and Support

Child custody and support issues are generally far more complicated in a same-sex divorce than they are in a heterosexual divorce. In fact, this can be the most difficult issue of all.

If one spouse of a same-sex couple is neither the biological nor the adoptive parent of the child, issues of parentage, and the rights and responsibilities attached thereto, will arise.

If one of you is the biological parent and the other did not adopt, for instance, the non-biological “parent” may or may not be seen as a parent by the court. The answer may depend, at least in part, upon whether the state in which the couple lives confers parental rights on non-biological parents.

If one spouse is determined not to be a parent in the eyes of the law, that spouse may be denied all parental rights and responsibilities, despite having devoted years to the care of the child in question.

Child custody and support laws differ from state to state, and the particulars of each situation lead to case-specific results.  A more in-depth discussion of the issues that can arise with respect to chi.

*California, Colorado, Connecticut, Delaware, District of Columbia, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington, and Wyoming.