Same-Sex Divorce: What Do Spouses Need To Know?

When it comes to divorce, same-sex spouses in Washington face all of the same legal and practical considerations and challenges as opposite-sex couples. However, same-sex spouses face some unique considerations and challenges as well, and addressing these issues during the divorce process is essential to achieving an efficient and favorable outcome.

Issues That Are Common Among Same-Sex and Opposite-Sex Couples

We will start by covering the issues that are relevant to both same-sex and opposite-sex couples in Washington. If you are preparing to go through a divorce, these issues are likely to require the majority of your time and effort during the process:

1. Property Division

Washington is an “equitable distribution” state. This means that divorcing spouses must divide their community assets equitably – though not necessarily equally. What qualifies as a “community” asset? How do you decide what is “equitable” under the terms of your divorce? While there are some general guiding principles, the terms of your property division will largely be determined by the circumstances surrounding in your divorce.

2. Spousal Maintenance

In Washington, husbands and wives are on equal ground when it comes to seeking spousal maintenance (or “alimony”), and this is equally true in same-sex and opposite-sex divorces. In order to determine whether you or your spouse may be entitled to maintenance, you will need to apply Washington’s alimony factors to the circumstances of your divorce.

3. Child Support

If you and your spouse have children, then you will need to calculate child support according to Washington’s child support guidelines. Unlike spousal maintenance, there is a standard formula for calculating divorcing parents’ “basic child support” obligations, and this formula applies in most cases. However, not all child-related expenses are covered by child support, and it will be important for you to address all additional relevant financial considerations during your divorce as well.

4. Child Custody and Parenting Time

In addition to establishing child support, you will also need to establish your post-divorce rights with regard to child custody and parenting time. Here, there are several factors that require careful consideration, and divorcing parents in Washington have several different options to consider as well. For more about establishing custody during your divorce in Washington, we encourage you to read:

  • Understanding the “Child’s Best Interest” Test in Custody and Divorce Proceedings
  • Understanding the Different Types of Parenting Plans
  • Child Custody Involving Infants and Toddlers

Issues That Are Unique to Same-Sex Divorce

As we continue to progress beyond the U.S. Supreme Court’s landmark decision in Obergefell v. Hodges, the distinctions between same-sex and opposite-sex divorce are gradually fading away. However, in today’s world, same-sex couples can still face a number of unique issues during the divorce process. Some of the more common examples of these issues include:

1. Duration of Your Marriage

Due to different states choosing to recognize same-sex marriage at different times, some gay and lesbian spouses will run into issues when it comes to calculating the duration of their marriage for the purposes of their divorce. This is of particular concern with regard to property division, where the duration of the marriage determines which assets qualify as “community” (as opposed to “separate”) property, and with regard to spousal maintenance, where the duration of the spouses’ marriage is among the enumerated factors that require specific consideration.

If you and your spouse got married in a state other than Washington, or if you were previously in a registered domestic partnership or civil union, then this is something that you should discuss with your divorce attorney. While it may ultimately prove to be a non-issue, you need to be certain in order to avoid unnecessary adverse consequences.

2. Parentage in Relation to Child Custody

For opposite-sex parents, a child born during the marriage is presumed to be the husband’s offspring. However, for same-sex couples, it is necessary to legally establish parentage in all cases. If you and your spouse previously took the steps necessary to establish parentage (i.e., through adoption), then you may not need to take any additional steps in anticipation of your divorce. However, if any legal questions regarding your child’s parentage remain unanswered, then you will likely want to address these questions prior to (or concurrent with) initiating your divorce.

3. Access to Health and Financial Records

In various circumstances, same-sex spouses can still face challenges when it comes to obtaining access to one another’s financial and health records. This may be an issue with which you are already familiar. While it shouldn’t be an issue, you may find that you need to overcome some frustrating hurdles when dealing with things like retirement accounts and health insurance during your divorce.

4. Out-of-State Issues

While Washington is considered by many to be one of the most LGBT-friendly states in the country, other states still have a lot of work to do. For same-sex couples in Washington, this can present challenges when they own assets, work for companies, and have previously resided in other states. As you prepare to go through the divorce process in Washington, it will be important for you to work with your attorney to identify any potential issues and develop strategies to overcome them effectively.

What about State and Federal Property and Income Taxes?

Finally, while getting divorced can have a number of potential tax implications, the Internal Revenue Service (IRS) has made clear that it treats same-sex and opposite-sex married couples equally. The same is true of Washington’s taxing authorities. As a result, while tax planning should absolutely factor into your decision making during your divorce, the issues you need to consider should not be materially different from those faced by opposite-sex spouses – unless, potentially, you own assets or earn income in certain other states.

Speak with a Trusted Lawyer for Same-Sex Divorce in Tacoma, Washington

If you live in the Tacoma area and are contemplating a divorce, we encourage you to schedule an initial consultation with one of our experienced lawyers. To request an appointment at your convenience, please call us today or get in touch with us online.

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