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Same Sex Divorce in America

in Family Law by Slater and Gordon on

Same sex divorce in America remains a difficult matter, even though same sex marriage is now legal in 13 states and the District of Columbia.

Because so few states recognise gay marriages, same sex couples have often travelled some distance to make their unions official, and do not live in the states where they got married.

In the 37 states do not recognise same sex marriage, same sex couples cannot get a divorce. In states that do recognise same sex marriage, same sex couples would need to establish legal residency there if they wanted to divorce.

Some states, including California, Delaware, Minnesota and the District of Columbia make it easier for same sex couples to divorce as they don’t require an onerous residency requirement.

For example, for a same sex couple to divorce in Washington, D.C, at least one spouse must be a resident of Washington or a member of the armed forces and stationed in Washington. States that permit or recognise marriages of same sex couples will allow same sex couples to obtain a divorce from a Washington marriage there, but those states may also have residency requirements for divorce.

Same sex divorce can be an expensive problem

Many same-sex couples were together for years, even decades, before they were allowed to marry. That can be an expensive problem in a divorce as most American courts will only divide assets starting from the time a couple actually got married.


Federal income tax laws can also complicate matters. Same sex couples splitting property or assets may get hit with a federal gift tax that does not apply to heterosexual couples.

Same sex couples, so far, divorce only half as often as heterosexual couples do, according to a study by the Williams Institute, a Los Angeles think tank that studies legal issues related to sexual orientation.

Finding a lawyer familiar with the specialised practice of gay divorce can be expensive, so it helps to find someone sympathetic to the cause.

Further reading: Creating a more equal society in the United Kingdom.

Kim Healy is a family lawyer at Slater and Gordon and represented a client from the United States of America.

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