Unique Social and Legal Challenges in Same-Sex Divorces

The US Supreme Court’s 2015 marriage equality ruling was a hard-fought victory for same-sex couples who had been denied the right to marry. For many couples, it was a long-awaited recognition of their love and commitment to each other and a step toward greater acceptance and equality for all people. However, as with any major social change, there are still many challenges that must be addressed.

The stigma that can surround same-sex divorces — even among those in the LGBTQ+ community — can be hard for divorcing couples to navigate. Same-sex marriages are still a relatively new concept in much of the world, which means that the idea of same-sex couples getting divorced may be met with confusion or disapproval by some. This stigma can make it even more difficult for same-sex couples to navigate the already complex and emotionally fraught process of divorce.

Divorcing same-sex couples may also face more tangible challenges. Because marriage equality is still relatively new in the United States, there is less legal precedent to rely on when it comes to dividing property and assets.

Asset Division in Same-Sex Divorce

The outcome of asset division in same-sex divorces may hinge on how the court treats the couple’s relationship history. Although many couples were together for decades before they were legally allowed to marry, their pre-marriage relationship may not be given the same weight as that of a similarly situated heterosexual couple. As a result, couples who have been together for many years prior to getting married may see their assets divided based solely on those acquired during the duration of their legal marriage.

For example, if a same-sex couple had been together for 20 years before getting married but divorced after just two years of married life, the court may only take into account the two-year marriage period when dividing assets. This could mean that one of the parties is left with significantly less than they would otherwise be entitled to.

With that being said, not all states handle the division of property and assets in the same way. In Illinois, if you can demonstrate that your assets significantly co-mingled prior to legal marriage, a judge may rule to include those assets in property division. Additionally, creating a prenuptial agreement or entering into a cohabitation agreement prior to getting married may be better positioned to protect their assets in the event of a divorce.

Working Toward Fair and Equitable Solutions

The legal and social landscape for LGBTQ+ individuals is still evolving, and there is much work to be done to ensure that everyone has equal access to the rights and protections they deserve. It is important for family law attorneys, judges, and other legal professionals to be aware of these challenges and work toward creating fair and equitable solutions for same-sex couples in the divorce process. Working with an experienced same-sex divorce attorney can help ensure that all parties are treated with dignity and respect throughout the divorce process.