Treece Talk Blog

An excerpt from my book, Take Pride In Your Money: LGBTQ+ Financial Empowerment Stories & Strategies

Divorce is 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 United States Supreme Court’s Obergefell v. Hodges case in 2015. Since then, over 750,000 LGBTQ+ couples have tied the knot. 

In the push for equal rights, people focused on legalizing marriage equality and didn't think about the divorce process. The overall divorce rate of first marriages in the United States 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 United States lasts about eight years before ending in divorce. LGBTQ+ couples may simply be catching up to their opposite-sex counterparts.

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 as 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. 

There is no question that bias within the legal system is a real threat to a fair outcome. Many judges all the way up to the Supreme Court have shown open anti-gay bigotry and bias to religious arguments against gay people and against equal protection under the law. The mere risk of facing this bias or a protracted appeal due to an unfavorable outcome discourages fighting for equality that straight people take for granted.

Each state has its own laws. People who entered civil unions or domestic partnerships before same-sex 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 hasn't been married long, there's a chance that a spouse may not be eligible for financial support, or the couple may not 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—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.

Child Support Payments and Custody Agreements

In 2017, the United States Supreme Court extended the Obergefell decision to other benefits of marriage, including parentage. Adoption by married same-sex couples was made legal in all United States 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, reduce legal fees, and identify potential challenges. 

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

• Prepare and implement pre-nuptial and post-nuptial agreements with your partner before marriage.
• Understand your accounts, assets, and properties.
• Know where important 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.

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Related Resources:

Here's The Tea: When Life Doesn't Follow Your Plan

Don't Let Divorce Derail Your Retirement: How To Protect Your Finances

Don't Derail Your Retirement: Maintaining Your Lifestyle After Losing a Spouse