The Gay Divorceé: Marriage Equality Can Result in Divorce Inequality

Gretchen Nauck |

Divorce is often a difficult life transition to navigate—no matter the genders of the spouses. There are countless repercussions, including the logistics of dividing assets, custody of children, and other legalities of separation. 

First comes love. Then comes marriage. When comes divorce?

Marriage equality didn’t become fully legal until the U.S. Supreme Court’s Obergefell v. Hodges case in 2015. Since then, over 750,000 LGBTQ+ couples have tied the knot. 

Nine years ago, people focused on legalizing marriage equality and didn't think about the divorce process.

The overall divorce rate of first marriages in the U.S. is 43% (60% for second marriages and 73% for third marriages). Recently, the gay divorce rate has also risen. In late 2023, Google searches for “gay divorce” nearly doubled.

This trend shouldn’t be surprising since the average first marriage in the U.S. lasts about eight years before ending in divorce. LGBTQ+ couples may simply be catching up to their opposite-sex counterparts now that marriage equality has existed for almost a decade.

Divorce rates are lower for LGBTQ+ couples than opposite-sex couples, but there are differences within the LGBTQ+ community. Lesbian couples are twice as likely to divorce than gay male couples. This may have several explanations, including:

  • Many lesbian couples enter into marriage more hastily and some end up regretting their decision.
  • Lesbian couples usually marry later in life compared to gay male couples. They may also be more likely to have been previously married. This could potentially lead to a higher risk of divorce for lesbian couples.
  • Women are less likely to tolerate cheating from their partner. They often cite infidelity as the main reason for divorce. This happens more frequently than it does for men.

The Not-So-Fabulous Aspects of LGBTQ+ Divorce

Couples in LGBTQ+ marriages face unique financial and legal challenges when getting a divorce.  

Differences are more likely for LGBTQ+ couples given that the maximum length of their legal marriage can only be nine years. A relationship may be decades long and include previous civil unions or domestic partnership agreements but ambivalence within the legal system and state laws can complicate a divorce. 

Each state has its laws. People who entered civil unions or domestic partnerships before marriage was legal may face challenges because of varying state laws. For example, if a same-sex couple married in one state but later moved to a different state, obtaining a divorce could be more difficult.

Property Division

The duration of a marriage significantly impacts how assets are divided. If the couple wasn’t been married long, there's a chance that a spouse may not be eligible for financial support or reach an agreement regarding real estate and shared assets.

For same-sex couples who lived together before marriage became legal, there's no guarantee that you'll walk away from the marriage with anything your spouse bought before you were legally married.

Spousal Support

Alimony payments, or spousal support, can be complicated in LGBTQ+ divorces when couples partnered before marriage equality. This is because the length of time they lived together before marriage can impact the alimony arrangement. LGBTQ+ couples in a long-term relationship before marriage may have a more complex alimony situation to navigate. Also, the length of some marriages is harder to determine based on past legal restrictions.  

In some states, a spouse may ask the judge to award "palimony" (financial support for unmarried partners), based on the years the couple spent living together before they legally married.

Predicting the outcome of a spousal support case is difficult because judges have a lot of flexibility in their decisions. Because of this and varying alimony laws between states, seeking legal help from an alimony attorney is key to understanding your rights and benefits

Historically, there have been four general categories of alimony:

  • Temporary (durational) payments last for a while and can sometimes end if the recipient remarries.
  • Transitional support helps with specific goals—such as going back to school or getting job training—until the recipient achieves them.
  • Reimbursement payments are structured around repaying the recipient’s specific contributions to the marriage—such as if they supported the now-higher-earning spouse during school or the early years of a business. 
  • Permanent alimony lasts for the recipient’s life but can sometimes end if the recipient remarries or enters a financially supportive relationship. In recent years, more states are getting rid of permanent alimony. Now, people view it as temporary support rather than a lifelong payment.

Child Support Payments & Custody Agreements

In 2017, the U.S. Supreme Court extended the Obergefell decision to other benefits of marriage, including parentage. Adoption by married same-sex couples was made legal in all U.S. states. If a mother has a child through assisted reproduction while married, her wife will be recognized as the child's other parent. This means that the child will have two legal parents. 

if the children of an LGBTQ+ couple are legally adopted by both spouses, support and custody processes are the same as those for heterosexual couples.

In other cases, although parents may have raised a child equally, this doesn't mean they have equal rights to the child as they would in an opposite-sex relationship. Legal definitions of gaining custody or even court ordered visitation rights can be an obstacle when one parent is not the child’s biological or adoptive parent. 

Parental recognition laws vary by state. It is crucial to research the laws in your state. This will help you understand your rights. limit legal fees, and identify potential challenges. Click here for a quick overview of parental recognition laws by state.

Divorce planning is one of the best wedding gifts for your spouse

Here are some tips to prepare for any financial situation with your spouse. These tips can be helpful even if you don't anticipate your relationship ending in divorce. It's important to be proactive and plan for any potential financial challenges that may arise.

  • Prepare and implement pre-nuptial and post-nuptial agreements with your partner before marriage.
  • Understand your accounts, assets, and properties.
  • Know where your documents are (titles, 401k, banks, assets, etc.).
  • Make copies of all financial account information and statements for individually titled and jointly titled assets.
  • Understand your rights regarding Social Security benefits and retirement account assets.
  • Educate yourself on your state’s current LGBTQ+ divorce and relationship recognition laws.
  • Include your financial professional, attorney, and accountant in discussions about your assets.
  • Regularly check your finances and make changes as needed to stay financially secure as a couple.

As an accredited fiduciary, I must act in your best interest during divorce proceedings. As a financial advisor, I ensure your protection in legal documents like beneficiary designations or property titles.

You can't control what the future holds, but Team Treece can assist you in planning for life after marriage and maintaining your desired lifestyle.

Schedule a right-fit phone call to discuss how we can help prepare you in case of divorce.