Divorce is never a pleasant process, whether it is between two people of similar or disparate sexes. As with a heterosexual divorce, same-sex divorce is a financially and mentally draining process.
In general same-sex divorce works the same way as its heterosexual counterpart. There will still be a legal petition for the court to dissolve the union formally. There will be a division of property, assignment of alimony, and decisions made regarding children and child support if applicable. Most states do not have explicit laws differentiating between the divorce of heterosexual couples versus same-sex couples.Â
While there are no major legal differences, there are some unique situations that arise from the nature of same-sex couples that heterosexual couples do not have to consider. In general, the main differences in a same-sex divorce occur in the domains of child custody and asset division.
The laws surrounding child custody are written to favor the biological parent where possible. While some same-sex couples will adopt and therefore both have an equal legal claim to custody, if one parent contributed biological material through the use of a surrogate, that may lead to difficulty in maintaining custody for the non-biological parent. Additionally, because same-sex marriage has only been nationally recognized for a few years, there are some complications with asset division. Same-sex couples who have been living as a married couple without the legal confirmation may have some assets that are treated as marital assets, but do not have that designation legally. This can lead to complications in asset division during the divorce.Â
As with heterosexual divorce, the length of a same-sex divorce can depend wildly depending on how contentious the divorce is. If both partners are amenable to the divorce and are willing to compromise on the issues of alimony, asset division, child custody, and child support, the divorce may be as short as a few months or as long as several years. Factors that can lengthen a divorce include time for legal motion resolution, time spent in mediation, or time to adjudicate issues in court.
Same-sex divorce can be inexpensive but, if there are issues in the divorce process, the cost can quickly escalate. In 2022 the average cost of divorce ranged between $15,000 and $20,000 with a median cost of $7,000. A large portion of the costs of divorce includes Family Law attorney fees, mediation costs, and administrative fees required by the court.
