LGBT Divorce, Alimony, Custody & More (LGBT Family Law)

A state or country that performs same-sex marriages also grants same-sex divorces. Australia, Canada, Ireland, the U.K., and the U.S. are among them.

Especially because same-sex marriage is relatively new, it's important to consult a lawyer — one who's experienced and comfortable with LGBT family law. Your situation may be more legally complex than you think. While some family laws have been updated to be gender-neutral, the law may still be ambiguous when applied to your situation.

Where you can get divorced

Usually people have to divorce where they currently live, unless they have a relevant connection somewhere else and that court system is willing to hear the case.

However, if your local court would not have recognized your marriage at the time it was performed, it may rule that your marriage has always been invalid and refuse to grant you a divorce. This describes some U.S. states' attitudes toward same-sex marriages performed before 2015. Consult a lawyer if this is your situation.

How long it takes

There's usually a waiting period for divorce. Read up on the laws and processes in your area. There could be minimum lengths of time for you and your ex to live apart (e.g. one year), as well for your divorce case to be on file with the court (e.g., 30 days).

Just about any court process goes faster when you're not arguing. For an uncontested divorce, you can submit a full agreement and sit out the waiting period. Your court may not even require a hearing.

But if one of you contests any issue during your case, you'll have a contested divorce. You'll need to figure out how to settle or else head to trial. If you drag out your divorce, it could take a year or more.

Tips as you start an LGBT divorce

Whether your breakup is amicable or high-conflict, choosing no-fault divorce usually simplifies the process. It means neither of you has to prove wrongdoing by the other. Instead of citing a ground for divorce like "infidelity" or "drunkenness," you could simply say you have "irreconcilable differences" (or whichever language your local law uses). This way, you may avoid revealing some details of sexual histories, etc.

In some areas, hearings and trials are open to the public. Anticipate that strangers could be in the room listening. If you can cooperate with your ex regarding which information you'll both air in court, you may find you can settle your entire case and avoid a trial altogether.

Some court systems have searchable websites where anyone can look up anyone else's divorce paperwork. You can't control this (unless you have a legal reason to make a special request), but you can prepare yourself by being aware of it.

Property division in LGBTQ divorce

In the U.S., marriage equality applies at the federal level as well as the state level. Straight and gay married couples have to follow the same rules. The same goes for divorced couples — your genders don't matter to the law.

Just like different-gender spouses who divorce, same-gender exes in the U.S.:

• Must follow state law for splitting assets, whether that's community property (as in California and Texas) or equitable distribution (as in Florida and New York)
• Must follow federal and state tax rules
• May continue or terminate healthcare benefits according to normal rules
• May divide a retirement account using a qualified domestic relations order

There is one crucial difference for same-gender couples who have been together many years, since before marriage was an option for them: the court may consider them married from the start of their relationship. So, for example, if one partner incurred a large debt before they were allowed to marry, the court may decide it was a debt incurred during the marriage. This feature of LGBTQ family law can dramatically shift how assets and debts are split.

Same-sex divorce alimony

One person is sometimes ordered to pay their ex spousal maintenance or spousal support, especially if they have significantly different incomes. This is so the lower-income spouse can continue to meet their basic needs or maintain the standard of living to which they're accustomed. This is separate from child support.

It may be paid in one lump sum, throughout the court case, for a fixed amount of time after the case or (rarely) indefinitely. The obligation usually ends upon the remarriage of the spouse who receives the money. Each location has different rules, and the amount may be up to the judge.

In the U.S., these payments are sometimes called alimony and alimony amounts depend a lot on your state. Same-sex spousal maintenance may also be ordered in Australia, Canada, Ireland and the U.K.

Again, for gay couples who were together before they had the right to legally marry, judges might calculate spousal maintenance based on the length of the entire relationship.

How LGBTQ parents prove they're parents

Anticipate that your lawyer or the court may ask for proof that you're the parent of your child. A legal parent can seek custody, parenting time and child support. By contrast, a stepparent (the spouse of a parent) typically has few rights but may be able to seek visitation.

It's important to consult a lawyer when establishing parenthood as a lesbian, gay, bisexual or transgender person, especially if standard wording doesn't describe your situation.

If you've already established parenthood

Gather old paperwork (e.g., the adoption certificate) just in case you need it. It's probably calmer to do this before you open your case or while your case is in its early stages, rather than waiting until someone asks for the document under a tight deadline.

If you need to establish parenthood

Identifying the child's biological parents (and terminating their parental rights, if applicable) is part of establishing the child's legal parents. A DNA test may be ordered. If you're divorcing while pregnant, expect to wait to test your child's DNA after they're born.

The sex of each biological parent may be mentioned or assumed during the court process. You may need to correct or clarify the information.

The family law in your area may call this type of case paternity, though others refer to it by the gender-neutral term parentage or parenthood. A parenthood case can involve multiple people, in addition to the child:

• The person who contributes the egg
• The person who carries the pregnancy (i.e., a surrogate)
• The person who contributes the sperm
• Anyone who believes they might be, or is suspected of being, the biological father
• The spouses of any of the above people
• The child's primary caregiver (who may be asked to provide information about or access to the child)
• Adoptive parents

The court may consider whether the parent's spouse has been a parental figure for the child and for how long.

LGBT-inclusive language in a parenthood case

In a paternity case, you'll likely encounter gendered words like mother and father, wife and husband, woman and man, she and he. For many people, this is simple and clear, but for LGBT families, those words may be ambiguous or inaccurate.

For example, in reciprocal IVF, one woman contributes her egg and her wife carries the pregnancy. Mother is an ambiguous word here, so their fertility assistance contract might be written to more specifically document their biological relationships to the child.

Similarly, if a trans man uses his own egg in a physician-assisted fertility treatment, he may want the contract to reflect his legal and social identity. Doing so may help protect his relationship to his child, should anyone question it in the future. A legal professional may advise that the document can refer to him as both a "biological mother" and a "legal father." Or maybe it can simply say he's a "parent."

There's no one universal way to write this language. It depends on the laws and court rulings in your area, as well as what the fertility clinic and your lawyer recommend. You may be able to acommodate your personal preferences and needs, including safeguarding your privacy about your sexuality and gender.

LGBTQ custody and visitation

Legal custody is the right to make major decisions about your child, including their medical care, schooling and religion. If you receive joint legal custody, you'll share these decisions with your co-parent. If you get sole legal custody, you'll have the right and responsibility to make those choices alone.

These topics — medical care, schooling and religion — have special significance when at least one person (parent or child) is LGBTQ. Consider that:

• Doctors and psychotherapists support your sexual and reproductive health and affirm your gender (or fail to do so).
• Schools acknowledge and teach facts about LGBTQ people (or avoid or forbid doing so). Your child's school is their community where they make friends and prepare for their future.
• Religions teach values and culture even more explicitly. As a gay or trans person, you probably have opinions about which religious communities you'd want your child to participate in.

You'll need to consider whether you can cooperate with your child's other parent to make such important choices.

Physical custody is about who your child lives with, which relates to your parenting time. Many areas have laws about co-parenting schedules. For example, judges must equally split parenting time in Kentucky and Arkansas unless there's a reason not to. Laws like these apply equally whether you're straight or gay.

While discrimination based on gender and sexuality is generally illegal, judges inevitably bring their personal prejudices into the courtroom. This is one reason why it's important to hire a family lawyer who's experienced with the local family court judges, as they can tell you what to expect and how to prepare your case.

Different-gender couples often worry that some judges may still be biased against fathers or (more rarely) against mothers. These concerns may not map directly onto your situation if you're a same-gender couple, but it's something to be aware of.

Child support for LGBT parents

Divorcing and separating parents receive a child support order according to local child support laws and guidelines. One parent will owe financial support to the other, except in rare cases. The amount is usually calculated by each parent's income and ability to pay, how many children they have, how much parenting time each person will have, and the children's medical expenses (if unusually high).

Parents may be able to reach agreement about how much support they'll pay. They might make it a round number (e.g., $1,000 per month) or factor in additional financial considerations (e.g., one parent's promise to pay for private school or college).

The parents' genders and sexualities shouldn't matter. Whether they're the biological parents of their child shouldn't matter either. As long as they're both the legal parents, a court may order child support.

Ending civil unions and domestic partnerships

Before same-sex marriage was available, some couples entered legal partnerships designed to convey some of the rights of marriage. Even if your jurisdiction is no longer performing these marriage-like contracts, your existing partnership is probably still valid and there should be a way to dissolve it.

Civil unions

Since the 2000s, couples have entered civil unions (in the U.S. and Canada) and civil partnerships (in the U.K. and Ireland). In Australian states, you'll hear civil union, caring relationship, registered relationship, significant relationship, domestic partnership, domestic relationship or de facto relationship.

Depending on local law, your civil union may have automatically converted to a marriage once same-sex marriage was legalized, or you may have converted it to a marriage by marrying your partner. To end your marriage, you follow standard procedures for divorce.

If you're still considered to have a civil union (not a marriage), your government may have a distinct procedure to dissolve it. This is the case in:

• Some U.S. states (Vermont, for example)
• Some Canadian provinces (Quebec, for example)
• The U.K.
• Ireland
• Some Australian states (Queensland, for example)

Domestic partnerships

In the United States, your domestic partnership may be valid in your city (like San Francisco, which has offered them since 1989) without being valid on the state level. Or it may have been a status granted by your employer. There may not be a statewide procedure to dissolve it.

It's a good idea to consult a lawyer, especially if you no longer live or work where you registered your domestic partnership.

When a spouse comes out as LGBTQ

When one spouse newly discloses a sexual orientation or gender identity, the marriage can continue if both spouses want it to. Often, however, the marriage ends.

If you're in a straight marriage and now one of you is gay or bi or plans a gender transition, that can feel like a reason to divorce.

Or maybe one or both of you has always been LGBT-identified, but now your LGBT identities are shifting and you feel you're on different wavelengths, headed for divorce.

When any relationship ends, it's OK to be disappointed and frustrated. You had certain expectations, and life didn't turn out how you wanted.

But take care with how you express it. Denying or insulting your spouse's perspective, identity and choices can hurt their feelings, make you sound prejudiced and keep you both from moving foward. Even if a spouse's "coming out" is your real reason for divorcing, you may not need to bring it up in court.

If you're feeling some hostility or resentment about your spouse's identity, try looking at your situation this way:

This is one example of how people change. The two of you have different wants, needs, values and goals. You've gained self-knowledge, and you've grown apart. You're sad about losing the future you'd hoped for. You'll both imagine new, separate futures.

This language, if it feels right, may help explain the situation to family and friends. It may also help tone down and refocus your arguments in mediation and in court. If you're parents, it's important to keep an overall focus on your child. That means not badmouthing the other parent or alienating your child from them.

Gender transition while married in England and Wales

In the U.K., marriages and civil partnerships are designated as "opposite-sex" or "same-sex." When a married or partnered person seeks to legally change their sex, they must either formally redesignate their union as "same-sex" or "opposite-sex" (with their partner's consent) or dissolve it (which can be an expensive, prolonged process).

This situation is known as a spousal veto on gender transition because of how the dynamics play out. A vindictive spouse may unfairly demand the house and primary carer status for their child, and until the trans person resolves that legal battle, they can't receive legal recognition for their sex.

Dealing with the emotional burdens of LGBT divorce

Divorce is stressful for anyone. For LGBT people, it can carry extra stressors. You may:

• Feel you've "failed" the LGBT community for not having a model marriage and causing others to doubt whether LGBT people "deserve" or can "handle" marriage rights
• Blame yourself for being with someone who's narcissistic, toxic or abusive and fear that others will assume all LGBT relationships are like this
• Worry that if others see your child struggling socially or academically, they'll assume LGBT parents are unhealthy for children

Those are big psychological burdens to carry.

Here are a few ways to reframe the situation.

Recognize that divorce is common among gay people as well as straight people. Sometimes a bad situation is primarily one person's fault, not because of their sexuality or gender, but because humans make mistakes in relationships. Sometimes it's no one's fault; it's just that two spouses grew apart. Furthermore, if your child is struggling, that may be due to something like autism or ADHD; it's not because they need straight parents.

The fact that your marriage is ending doesn't mean you're insufficient. You may remarry someday, if you want to. You can continue to be a great parent.

Neither does your divorce prove anything about the worth of LGBT people in general.

Give yourself permission to do what's right for yourself. You can treat your ex fairly too. Most of all, if you're a parent, support your child's best interests.

Be honest with yourself about what needs to happen. Set boundaries (co-parenting boundaries benefit your child too), play fair in the legal process, and inform others who need to know. When you tell the truth, the path becomes clearer.

Going through LGBT divorce as a parent

Preparation is the most important part of the LGBTQ divorce process — especially if you're a parent.

Evidence you might file in a divorce involving custody includes:

• A proposed parenting plan
• Proposed parenting time schedules
• A printout of messages exchanged with the other parent
• A log of your child's expenses
• A parenting journal

With the Custody X Change online app, you can create all of these in one place.

Choose one color (or letter) to represent yourself and another to represent your co-parent. You can pick your own colors from the full rainbow. This color-codes your custody calendar to make it your own.

The app makes sure you're ready to get what's best for your child.