Divorce For Same-Sex Couples
Same-sex couples in Washington State, whether they are in a marriage,
domestic partnership, or a civil union must dissolve their relationship
in the same way their opposite-sex married peers dissolve their marriages—with
a divorce. In many ways the same rules apply, but there are special issues for
gay divorce in Washington State.
Divorce Rates: Same-Sex vs. Opposite-Sex
Same-sex couples are divorcing at half the rate of opposite-sex couples.
According to data published by the Williams Institute at the UCLA School
of Law, in 2011 the divorce rate for same-sex couples was 1.1% per year,
while the divorce rate for straight couples was 2% per year. (Note that
the percent of couples that get divorced is eventually around 50 percent,
but only one or two percent get divorced in a particular year.)
Issues Unique to Gay Divorce
Every divorce case is unique, but the following are some of the issues
that often impact same-sex couples seeking divorce.
Duration of the Relationship
Because same-sex marriage has only recently been recognized, it can be
difficult to figure out the start date of a relationship. Now that marriage
has been expanded to same-sex couples, should their entire co-habitation
period be considered part of the marriage?
For example, consider a same-sex couple who has been together for 25 years
and got married once it was legal to do so. When their relationship ends,
how long was their marriage for the purposes of alimony/maintenance? Will
there be an impact on a just and equitable distribution of property? These
are questions that have yet to be answered in Washington State.
The duration of a relationship is important because it influences what
property will be on the table to distribute during a divorce. It also
impacts spousal maintenance (alimony).
Even though the Supreme Court found the Federal Defense of Marriage Act
unconstitutional, issues persist for couples in domestic partnerships
and civil unions. Many tax issues will persist for these couples regarding
property distribution and spousal maintenance (alimony). This includes:
Property transfers: transferring or distributing property between same-sex spouses may be
subject to federal income tax
Alimony/spousal maintenance taxation: spousal maintenance/alimony is typically tax deductible by the payer,
and taxable to the recipient; however, divorced same-sex couples are not
able to deduct maintenance/alimony payments
In some instances, same-sex partners are not allowed access to their partner’s
financial information or accounts, like a pension or a retirement account
of the other partner. Dividing retirement plans, in general, poses unique
challenges for same-sex couples.
Same-sex couples may experience problems when they marry or enter into
a civil union or state registered domestic partnership, and either (1)
never live in the state where married or registered, or (2) their relationship
ends while living outside of that state.
Most states have some kind of residency requirement, often requiring one
or both people to reside in the state for a month prior to being able
to file for divorce. Washington's residency requirement is simply
that one spouse must be a resident of the state at the time the divorce
petition is filed. Washington will dissolve same-sex marriages, domestic
partnerships, and civil unions from other states.
Marriage Craze: Legal Dissolution of All Legal Relationships
Many couples also may have gotten married or registered in multiple states
or countries. When a couple is divorcing, they need to make sure to disclose
all of these legal relationships to make sure that the court dissolves
all of them. For example, if a couple fails to ask the court to end their
Nevada state registered domestic partnership when dissolving their Washington
marriage, they will still be in a legal domestic partnership until it