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Issues in Same-Sex Divorces

Curiale Hostnik PLLC Oct. 1, 2021

In November of 2012, Washington became one of the first three states, along with Maryland and Maine, to legalize same-sex marriage through voter approval. One month later, hundreds of couples began obtaining marriage licenses, ready to enjoy the same right to marry as heterosexual couples.

The right to marry was accompanied by the ability to divorce should a same-sex couple break up. Although marriage now looks the same for all couples, same-sex couples face some unique challenges when it comes to divorce.

At Curiale Hostnik PLLC, we help same-sex couples navigate the difficult issues many face when getting divorced. If you live in Tacoma, Washington, or in Pierce County, including Puyallup, Gig Harbor, Lakewood, and University Place, we can help.

What Does Same-Sex Marriage in Washington Mean?

Same-sex couples have had the right to marry since 2012 in Washington. Their marriages enjoy all the same rights and privileges as any marriage, such as non-taxable transfer of property, access to a spouse’s health insurance, retirement, Social Security, and the assumption that if the couple had a child while married, both are parents of that child. The right to marry also includes the right to divorce and the obligation to divorce if the couple no longer wants to be together.

What Are Some Issues Unique to Same-Sex Divorce?

Long before same-sex marriages became legal, some same-sex couples were living together as if they were married. They may have combined their assets, debts, children, and lives just as married couples did. That time spent together prior to marriage may cause problems when same-sex couples divorce. Here are four common issues in same-sex divorce:

  1. Division of assets and debt. Washington law assumes that all property acquired during the marriage is community property and that the marital property should be divided equally in divorce. Same-sex couples who lived together long before they were legally married acquired property together as though they were; however, the court may only recognize assets and debt acquired after the date of marriage as community property. What is not community property is the property of the person who acquired it, and that may leave one spouse at a great disadvantage in divorce.

  2. Child custody and support. One spouse might have had a biological child prior to the marriage, fully intending to share the child with their partner. Or, because same-sex couples were not allowed to co-adopt a child prior to being able to do so as a married couple, one partner might have adopted a child with the intention of co-parenting. If the non-biological or non-adoptive parent didn’t formally adopt the child after marriage, they may have no legal right to custody and visitation with the child they have always considered to be theirs. Likewise, the spouse not considered the child’s parent would have no legal obligation to pay child support.

  3. Alimony. Alimony, or spousal support, is often necessary in divorce when one spouse has been out of the workforce or lacks education or training to support themselves. Alimony is based on one spouse’s need and the other spouse’s ability to pay it. It is also based on the length of the marriage. A spouse who has been supported by the other spouse for a long time is more likely to be awarded alimony. However, same-sex marriages often do not reflect the longevity of the relationship and the support one partner has provided to the other. That longevity may not be reflected in the court’s decision regarding alimony.

  4. Tax issues. These may arise in the division of assets during divorce. If the court agrees to consider property owned by one spouse prior to the marriage as community property, and the property needs to be transferred to the other spouse, the receiving spouse may be required to pay federal tax on the value of the property.

Work With Experienced Family Law Attorneys

Same-sex marriage is relatively new, making same-sex divorce the same. Although the law recognizes same-sex marriages, decisions regarding time spent as a couple before you could be legally married will be fluid.

Even if you and your spouse can agree on the terms of property division, child support and custody, and alimony, it doesn’t mean the court will approve the agreement. You need a strong family law attorney as your advocate in negotiations with your spouse and in the courtroom before a judge.

Call Curiale Hostnik PLLC to talk about your divorce. We embrace legal challenges, including those unique to ending a same-sex marriage. If you live in Tacoma or in a community in Pierce County, Washington, call us today.