What challenges do same-sex couples face in divorce?

When the U.S. Supreme Court legalized gay marriage in all 50 states in 2015, many same-sex couples quickly celebrated by getting married at courthouses across the country. Others, who already had wed in states where it was legal, happily rejoiced that now that option extended to all U.S. same-sex couples. But with marriage comes divorce, even for same-sex couples.

Because many now married same-sex couples have been together much longer than gay marriage was legal, they face unique challenges in divorce. Asset division, child custody and potential spousal support often are not clear cut.

Asset division

If same-sex couples didn’t sign a prenuptial agreement, one partner may not be entitled to as many assets as the couple built during their relationship. For example, if a lesbian couple was unmarried and one partner took time off from her career to raise children, the other was able to stay in her job, building retirement assets. The courts might not consider those assets marital property because the couple wasn’t married at the time.

If the couple bought a home before they were legally married, yet only one partner is legally the home’s owner, the courts will only look at how that home’s value increased during their legal marriage. If one partner significantly earned more during their 18-year relationship and they’ve only been married since 2015, the lower-earning partner may not receive assets from the entire time the relationship lasted.

Child custody

For child custody, the legal hurdles in a same-sex divorce can be much more difficult. For those couples who had children before 2015, one spouse may not be on the birth certificate as some states didn’t recognize same-sex partners as both parents. If couples adopted children, again, both partners may not be legally recognized as parents. In fact, Louisiana didn’t legally allow a same-sex couple to adopt a child until 2014.

As a result, the nonlegal parent might have their continued relationship with their child in jeopardy. They often have no legal rights for custody if the divorce becomes contentious.

That’s why some same-sex couples seek divorce mediation, where they can come to an agreement on custody and asset division on their own.

If you are in a same-sex marriage and now planning to divorce, you should consult an experienced family law attorney. An attorney can advise you on how to proceed and overcome some of the same-sex divorce challenges when it comes to asset division, custody and even spousal support.