Same-Sex Divorce? You Need a Lawyer.


Divorce is never simple. Most people should go in with a lawyer’s help.

This is especially true for same-sex couples, who face unique family law issues that courts haven’t worked out yet. Namely: figuring out what the “start date” of the marriage actually was.

Prior to the Obergefell decision which made same-sex marriage legal in all fifty states, gay couples did not have the ability to marry in many states. In Pennsylvania the ban had lifted nearly a year prior to Obergefell, when The United States District Court for the Middle District of Pennsylvania upheld marriage equality. 

While awaiting equality many couples created relationships that resembled marriages in most ways. These people shared bank accounts, raised children together, and supported one another’s economic endeavors.

In a traditional marriage, the start of the marriage is marked on the day the marriage license is first signed. In same sex marriage determining the start date is a little harder. By the strict definition, no same-sex marriage would be more than 5 years old, even if the couple had literally run to the courthouse the day after the decision was made.

In Pennsylvania there is some remedy. If the couple entered a marriage-like relationship prior to January 1, 2005, then the court may be willing to recognize the entire relationship as a common-law marriage and to proceed from there. Usually, the court will need evidence to support the idea that a common-law marriage existed.

Couples who came together between 2005 and 2014 face challenges.

The start date of a marriage has huge implications for the divorce process. The length of the marriage matters in two instances.

First, it matters for determining whether something is marital property or non-marital property. In a traditional marriage, anything you owned prior to the date of marriage is non-marital property.

In a same-sex marriage, you and your spouse might have accumulated property for years before being granted the right to marry. One spouse could be at a significant disadvantage during the distribution of property if all of that work and time gets ignored.

Marital property includes retirement benefits, and the percentage of the benefits each couple receives.

The second issue is spousal support. Alimony pendente lite gets calculated on the basis of need. Spousal support is calculated after examining a number of factors, including the length of the marriage.

The economically stronger spouse might want the marriage date to be set on the date of marriage just to gain more of the assets and to keep spousal support costs low. Meanwhile, it’s in the best interest of the economically weaker spouse to have the date set at a time when the two parties began their committed relationships. 

Many LGTBQ divorcees try to remedy this problem by keeping the matter out of court. Working with your lawyer to put together an amiable, out-of-court settlement could offer an arrangement that is fairer than the one a judge might craft. 

Yet people often get swept into court despite their best efforts. If you do, you will need a lawyer who will provide a solid, evidence-based argument that will help judges properly calculate the marital start date. 

See also:

What is Alimony Pendente Lite in PA?

What is a QDRO?

How Alimony is Changing in Pennsylvania Divorces

The Difference Between Fair and Equitable


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