Gay, or same-sex divorce, is a relatively new phenomenon since the historic passage of Obergefell v. Hodges in 2015 in which the U.S. Supreme court legitimized same-sex marriage in every state. Massachusetts had been ahead of the curve since it legalized same-sex marriage in 2004 in the case of Goodridge v. Department of Public Health, declaring that it was a violation of our state’s constitution to allow only heterosexual marriages. But of course, most of the problems that plague heterosexual couples also impact gay couples with some distinctions since 13 states had banned same-sex marriage before Obergefell.

Some states allowed gay couples to enter into domestic partnerships that offered most of the benefits of marriage, but not all. Of course, if you lived in a state that banned gay marriage, you could simply get married in a state that recognized it (once you fulfilled the residency requirements), although it may not have been valid once you returned to your original state. And, if you were legitimately married abroad before 2015, you could have faced certain obstacles in your home state about getting a divorce if that state banned such unions. However, that obstacle no longer exists since you may now seek a divorce in any state where you reside.

The Same Laws Apply to You

Gay divorce requirements are the same as for heterosexual couples. In Massachusetts, you can get divorced if either of you have lived here for one year. You also must file in the county where you live or where you and your spouse last lived together. Before filing, consult with your gay divorce lawyer about which county may be more beneficial to you.

Massachusetts is also a no-fault divorce state where you need only allege “irreconcilable differences” as the grounds for divorce. You or your spouse may allege other grounds, such as abandonment, adultery, drug addiction, or cruel and abusive treatment among some others, but if the grounds are disputed, a court will generally convert the divorce to no-fault. No court will deny any party a divorce. Also, alleging certain grounds just makes the divorce costlier and is rarely of any discernible benefit.

If you are involved in a child custody dispute or property distribution disagreement over substantial assets, then you may allege that your spouse committed certain egregious acts so long as you have credible evidence.

Child Custody and Visitation Issues

Same-sex couples are often parents. In some cases where the spouses are both males, one of the parents may use in-vitro fertilization using his sperm for the donor eggs. Where the parents are both females, one of the women will become either become impregnated or use her eggs to become fertilized outside of her uterus. In either case, the non-biological spouse will be a parent as well. In Massachusetts, as in every other state, the law benefits the biological spouse in a custody battle, unless both parents are on the child’s birth certificate. However, under less than perfect circumstances, the biological parent may be favored.

In our state, if you can demonstrate that although you are not the biological parent but acted as a de facto one, you can obtain visitation rights over any objections of your spouse. You may even obtain custodial rights if you are unequivocally the superior care-taker of the child, or the biological parent has shown conduct that is detrimental to the well-being of the child and custody with that parent would not be in the child’s best interests.

Division of Marital Assets

As an equitable distribution state, Massachusetts courts will divide the property acquired during the marriage, or marital property, on an equitable basis depending on the needs of each party. Generally, the marital property, including any debt accumulated during the marriage, is split equally absent circumstances where one party’s financial condition is clearly unequal or where fairness dictates that one party receive a larger share. As with any issue in a divorce, try to settle it between yourselves rather than litigating it and letting the court decide.

But for some gay couples who were cohabitating and accumulating assets before same-sex marriage was legalized in Massachusetts in 2004, a court may have to decide whether to treat certain assets as marital or pre-marital. This same circumstance would apply to couples who cohabitated in a state that banned same-sex marriage before moving to Massachusetts in 2004 and then getting married. Some legal experts have advocated an analysis of whether the couple would have married in that state, if permitted, in order to designate a martial starting point from which assets and debts became marital.

This analysis becomes less urgent since it is now 14 years and counting since state law allowed gay couples to marry.

Spousal Maintenance

A similar dilemma for same-sex couples arises over the issue of alimony or spousal maintenance if based on the length of the marriage since the starting date would be 2004 for gay couples married here. It would  be at a later date for those who legally married in a different state or cohabitated there before 2004, or in a state that banned such unions until 2015.

However, state law does allow a court to increase the length of the marriage duration should there be enough evidence that the couple’s “economic marital partnership” began during the time they cohabitated before the marriage (M.G.L.c. 208 s. 48). There should be strong or compelling evidence to support this since many couples choose to cohabitate with no intention of marrying, at least for some time.

Consult Divorce Lawyer Heather M. Ward

Gay, or same-sex couples, may face unique issues when divorcing, especially if their relationship existed prior to 2004, or they were married in one of the 13 states that prohibited gay marriage before 2015. Talk to gay divorce lawyer Heather M. Ward if you are contemplating divorce or are a party to a divorce petition at (617) 906-7554.