Divorce For Same-Sex Couples

Chapter 8 - 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).

Tax Issues

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

Access Issues

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.

Residency

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 is dissolved.

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