Same-Sex Divorce Financial Challenges


As of 2013, same-sex marriage was recognized in California, and the Supreme Court of the United States (SCOTUS) made same-sex marriage legally recognized in all 50 states in 2015. Since then, many same-sex couples have solidified their relationships by getting married, which also means that some same-sex couples will also file for divorce.

Just like same-sex couples faced many unique hurdles on the road to marriage in the United States, they can also face unique challenges in divorce – including financial challenges. Divorce can wreak havoc on your finances as it is, even without any additional difficulties. It is critical to protect your financial rights and interests to ensure you receive a fair outcome and are in the best position possible moving into your post-marriage life.

The best way to stand up for your financial interests in divorce is to have a same-sex divorce lawyer who handles these cases in California. The issues in same-sex divorce cases are newer, and family courts are still working through how to address them and what the legal precedents will be.

The following are some financial considerations that apply in same-sex divorce cases. To discuss your specific situation, never wait to reach out to an experienced California same-sex divorce attorney.

Shorter Marriages

Many financial issues in divorce take into consideration the length of the marriage. How long you’ve been married works to determine certain rights or obligations in divorce, including property division and spousal support. Generally speaking, the longer you are married, the more protection you have when it comes to receiving spousal support and other financial issues.

This has become a challenging issue in same-sex divorces, as same-sex spouses have only been legally recognized for a limited number of years. No same-sex marriages have been around for a “long time,” which can immediately limit your rights. Many same-sex couples were together long before an official marriage, so the length of the marriage itself is not representative of what their financial rights should be.

Financial Support Post-Divorce

In some divorce cases, one spouse will request spousal support – also called alimony or spousal maintenance. Such support is awarded when there is a financial hardship of one spouse following divorce, often because they gave up the pursuit of a career for the good of the relationship. When this happens, one spouse can support themselves after divorce, while the other cannot, and the law provides support for the lesser-earning spouse.

Spousal support is largely based on the length of the marriage, as most judges do not award support following shorter marriages, and, even if they do, the support will likely be limited to half the length of the marriage or less. Even if you were living with your spouse and providing household or child care for years prior to your marriage, that time might not be taken into account by the family judge.

The relatively short length of same-sex marriages puts a lot of spouses at risk of not having the financial support they need – and that they would receive had they been able to marry years earlier in their relationships.

Dividing Property and Assets

California is a community property state that entitles each spouse to half of the marital property and assets. The division should be equal even if one spouse contributed more financially than the other. However, the property that is to be equally divided is only the property that spouses acquire during the marriage. It generally does not take into account property brought into the marriage in one spouse’s name.

Imagine that you started living with your partner in 2000, but you did not marry until 2013. Your spouse was the higher earner or had better credit, so much of your property that you acquired from 2000 until 2013 was in their name only. This property might not be included in your community property division, and you might lose out on half of the property and assets that you built together in the years prior to your marriage.

Benefits from Social Security

Many people might not realize that they can increase their retirement benefits under Social Security based on their spouse’s earnings. If you have less than half of your spouse’s earnings for the purposes of Social Security, you can opt to receive benefits based on half their earnings without it impacting their own benefits. Spouses who get divorced are still entitled to these benefits under many situations, though you need to be married for ten years or longer to take advantage of this. Since same-sex marriage has only been legally recognized nationally since 2015, this prevents same-sex spouses – and divorced spouses – from seeking the benefits they deserve.

The Court’s Approach

Many people wonder whether courts will recognize the unfair financial impact that same-sex spouses might feel in divorce due to the inherent shorter length of marriages. So far, different courts in different states have issued different types of rulings on the matter.

Some courts are acknowledging the many years you might have lived together prior to marriage, while others refuse to do so, even if you present significant evidence of why you deserve certain financial benefits. When it comes to federal benefits, only the years you were in a legally-recognized marriage count, which could only be just over six years at the time of this writing.

There is no doubt that same-sex spouses filing for divorce can face financial challenges, especially if their relationships were much longer than the marriages themselves. In addition, court decisions have been all over the place, and you want to know what you might expect in your specific situation and specific jurisdiction.

The best solution is to seek legal guidance and assistance from an attorney who is representing same-sex spouses in divorce cases in your area. You can discuss your situation with a skilled lawyer, who should advise you on what might happen in your case. Often, an attorney can help you reach out-of-court agreements that can take your longer relationship into account. Do not wait to consult with a trusted California divorce lawyer about your case.