Same Sex Marriage & Divorce
Some Information...

Before the 2015 Obergefell v. Hodges case, couples in same-sex marriages (with some exceptions) could generally obtain a divorce only in jurisdictions that recognized same-sex marriages. Some same-sex couples brought civil suits to end their marriages in states that denied them access to divorce; civil suits cost more.

The landmark ruling also delivered marital legal protections afforded to heterosexual marriages, including rights related to medical decisions, certain tax benefits and access to employee benefits

Same-sex divorce poses complications for some splitting couples

•   The legal date of a same-sex marriage might not accurately reflect how long the relationship has lasted.
•   In some cases, parental rights are not clear-cut.
•   Mediation, which tends to be less costly and more flexible, can be a better option than litigating a divorce.
Same sex divorce is changing!

Though divorce laws vary state-by-state, some basic factors commonly guide courts’ approach to financial decisionmaking: how long the couple has been married, how they have contributed financially to each other and to their family, and what property is separate or commingled.

Factoring in assets acquired during years a gay couple partnered but were not legally wed will be included in the marital pie. Estate plans drawn up earlier to facilitate transfer of wealth between partners could be understood as statements of intent when dividing marital property. The decision by one spouse to be a parent would now be the right for both.

Partnered couples who choose to marry have an opportunity and responsibility to understand their many financial and legal entitlements. These entitlements come with the knowledge that all prior planning or lack of planning (unintentional or not) is superseded.
Non Resident Same-Sex Divorce

In recognition of the challenge same-sex couples faced getting divorced, many states that permitted same-sex marriage also allowed non-resident same-sex couples to divorce. For example, California requires that at least one spouse be a resident of California for at least six months prior to filing a petition for dissolution of marriage. However, California also allows non-resident same-sex married spouses to dissolve their marriage if they married in California and neither spouse lives in the state. The couple must file for dissolution in the county in which they married.

In Illinois, generally one spouse must be a resident of the state for at least 90 days prior to petitioning for dissolution of marriage. However, Illinois courts also would grant a divorce if both spouses lived in a state in which the court would not dissolve their marriage.

Other states that allow for non-resident divorce include Delaware, Hawaii, Minnesota, and Vermont. In addition, Washington D.C. allowed non-resident couples to divorce if they married in the District of Columbia and didn't reside in a state that recognized same-sex divorce.

In the wake of the Obergefell decision, though, same-sex couples have a fundamental right to obtain a divorce regardless of their state of residence.
Dissolution of Domestic Partnerships
And finally, some final thoughts...

Despite the Supreme Court's historic ruling, some same-sex couples may still be caught in a state of limbo if they choose to end their partnership. For instance, many same-sex couples who did not have access to marriage opted for civil unions or domestic partnerships instead. While legally similar to marriage, not all states recognize these types of arrangements and as a result may not be able to dissolve civil unions or domestic partnerships. Couples who entered into civil unions in Delaware and Rhode Island, however, are legally considered married (civil unions in those states were converted to marriages in 2013).

It's not quite clear how state governments will respond to the sweeping changes in marriage law, including access to divorce by partners in civil unions.


After several years of fluctuating laws and status, the matter is finally settled at the federal level. But it is important to refer to your state's laws if your situation is particularly complex. Those in civil unions, for example, may need to establish residency in the state where the union was performed in order to dissolve the relationship. But if you were legally married, you may now get divorced in any state.

Getting Divorced? Make Sure You Have the Right Lawyer on Your Side

Although same-sex marriage law is largely a settled matter after Obergefell, some confusion may still remain. Get assistance with understanding the requirements for divorce in your particular situation. Consider contacting us today so that you have an experienced, local divorce attorney today who can protect your interests. 

Your Decision | When it comes to the crunch, it is your decision and for the most part your decision will be driven by finances and your current relationship with your spouse.