In 2015, the Supreme Court changed the landscape of marriage in America by giving same-sex couples the right to marry across the nation. This was a monumental victory for equality and for the power of love.
Unfortunately, even the brightest of flames can eventually sputter and go out. Not every marriage lasts, including same-sex marriages. No divorce is easy, but same-sex couples face unique challenges when it’s time for partners to go their separate ways. Same-sex divorce is still a relatively new phenomenon, forcing couples and courts to forge new paths and legal precedents.
There are a lot of other factors to take into consideration, so it is best to work a divorce attorney to determine your particular situation.
Here are some of the considerations that might come into play.
Length of Marriage
The length of your marriage is an exceedingly important detail that will play a HUGE role in the financial outcome of your divorce, particularly if you are the lower-earning spouse. The challenge is that many same-sex couples were in committed partnerships for years, sometimes decades, before the Supreme Court’s Obergefell v. Hodges decision came down allowing them to make it official (or when their state independently legalized same-sex marriage). While these couples may have been married in everything but name, in most states, it’s the legal recognition that counts.
Division of Marital Assets
A divorcing couple must find a way to divide their marital assets. In “Community Property” states like California, each spouse is entitled to half of all marital assets regardless of whether one partner contributed more than the other.
A marital asset is any income earned or debt acquired during the marriage (with a few exceptions). The house you purchased together after your marriage, the boat, the rental property, every paycheck you brought home after you said your vows, is marital property.
What happens, though, if you started living with your spouse in 2005 but only got married in 2015 after the Supreme Court decision? If you are the lower-earning spouse, or if you left your job because your partner made enough for both of you, this means you could miss out on ten years’ worth of your partner’s earnings and income!
Spousal Support / Alimony
The length of your marriage also plays a central role in the award of alimony, also known as “spousal support.” Judges are much more likely to provide alimony to partners that have been together for a significant amount of time and rarely give it to a spouse who has been married for only a couple of years.
Again, even if you and your partner lived together for ten years before the Supreme Court decision, this amount of time together might not be taken into consideration when a judge determines your eligibility for spousal support.
Social Security Benefits
A little-known fact is that you may be able to increase your Social Security benefits after you retire based on the earnings of your spouse. If your Social Security earnings are less than half of what your spouse is entitled to, then you can opt to receive benefits equal to half their earnings (which won’t affect the amount of their benefits). This is even true after you are divorced. There is one big caveat. You must have been married to your spouse for at least ten years in order to take advantage of this rule!
How the Courts Are Ruling
Can the time you spent together with your spouse before same-sex marriage was legalized count in your favor during your divorce proceedings? Can it entitle you to a bigger chunk of your spouse’s assets and help you qualify for spousal support and Social Security benefits?
The answer is not clear. Divorce is handled at a state level, and courts across the country have offered a variety of rulings. Some states will count the years you cohabitated with your partner or were in a registered domestic partnership as part of your marriage. Others will not, despite all evidence that you were in a committed relationship before same-sex marriage was legalized. There’s no wiggle room when it comes to Social Security since federal law says only the years you were legally married count.
What Can You Do to Reach a Fair Marriage Settlement?
Right now, the divorce waters are murky for same-sex couples. If you are considering a divorce, it is best to seek out the advice of an experienced divorce attorney. Ideally, you’ll want to find an attorney who has handled same-sex divorce before. Your attorney can advise you on current state rulings and what you can expect.