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Throughout history, same-sex couples who shared their lives faced challenges in hetero-centric institutions. In many cases, uncoupling and separating their lives were even more challenging, especially from a legal standpoint.

With same-sex marriage being legalized in the USA in 2015, many of these hurdles were simplified. However, same-sex couples still face nuanced intricacies during a divorce.

Here are some practical tips for navigating a same-sex divorce, should your marriage break down.

Determining Fault vs. No-Fault

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Determining fault in a gay divorce follows the same principles as a heterosexual divorce. The determination starts with the state legislature; some states have adopted a no-fault divorce model, while others have not.

If your state has a no-fault divorce, you’ll typically require a 12-month period of separation before filing for a legal divorce. The separation period can be eliminated in a fault divorce, should it meet the criteria and sufficient evidence be presented to the court. Generally, a fault divorce is based on adultery, abandonment, abuse, or a criminal conviction.

If you’re pursuing a divorce based on fault, you should reach out to an attorney to determine the best path forward.

Dividing Property

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The division of property used to be challenging for same-sex couples before same-sex unions were federally recognized. This aspect of a divorce is still incredibly challenging for all involved, but those challenges align with what heterosexual couples face.

Again, the division of property will vary based on whether you’re navigating a fault or no-fault divorce. Most states try to encourage an equal division of debts, assets, and belongings, however, it’s important to note that equal doesn’t always mean an even split. This division could be impacted by income, timelines, and several other factors.

If you and your partner can’t agree on a fair division of property, seek legal guidance. If you can agree, it’s still worth having a lawyer take a look before signing anything.

Dealing With Child Custody

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Child custody tends to be the scariest aspect of a same-sex divorce — especially if one person is biologically related to the child or a formal adoption isn’t registered.

Fortunately, the legalization of same-sex marriage has improved the proceedings related to child custody should a split occur. However, it’s crucial to understand whether your state recognizes de facto parenting, as many states are well behind on clarifying these issues. If children are involved, it’s always wise to consult a lawyer — even if the split is amicable.

The Psychology of Same-Sex Divorce

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credit: Liza Summer

Many LGBTQ couples face additional emotional and psychological challenges during a divorce. It’s not uncommon to hear snide comments about the hard-fought battle to get same-sex marriage legalized when pursuing a divorce. For many couples, this creates pressure to stay together even when the relationship has dissolved.

LGBTQ people also have higher incidents of mental health disorders such as depression and anxiety, largely stemming from years of oppression, shame, and trauma. These issues can be exacerbated when navigating such a huge, adverse life event like a divorce.

Don’t hesitate to reach out to an LGBTQ-experienced therapist or counselor for help during this process. Make time for self-care and connect with your community.

The Challenges of Same-Sex Divorce

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In addition to the stigma and emotional effects of same-sex divorce, there are still significant challenges in the greater legal landscape. It can be difficult to find a divorce attorney who has experience in same-sex divorce. It’s important to have legal representation from someone who understands the nuances of gay divorce and can provide guidance and empathy while being sensitive to their clients’ experiences.

Another overarching challenge is the distorted timeline when considering the duration of the relationship. Many same-sex couples have been together for decades, though their union was only recognized after the legalization in 2015. Depending on the state, some courts will only recognize the relationship for the “legal” period. This distorted view can dramatically impact the division of property.

Child and spousal support are also complex issues when navigating a same-sex divorce, playing into the more significant issue of child custody.

Tips for Finding an Experienced Attorney

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When pursuing a same-sex divorce, having an attorney who has experience working with LGBTQ clients is paramount. Take some time to find someone with proven experience with same-sex divorce in your state. Don’t hesitate to ask tough questions about their experience, views, and process.

The dissolution of a marriage is never easy, but it’s sometimes necessary. Take your time, do your research, and find the best solution for you and your family.

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