Same-sex divorce, nationally and state-wide

The national landscape

In 2004, Massachusetts was the first state in the Union to make same-sex marriage legal, after the state Supreme Court ruled that it was a denial of equal protection for the state to deny the benefits of civil marriage to a couple of the same sex wishing to marry. The court gave the state Legislature 180 days to take some sort of action. When it did not, on May 17, 2004, for the first time in the United States, a same-sex marriage ceremony took place.

Since then, 19 more jurisdictions have recognized same-sex marriage. With legal marriage, though, comes the reality of divorce. While more gay couples have gained access to rights afforded by civil unions, domestic partnerships, and marriage, there are also some couples who find that they want to dissolve their legally binding relationships.

In November 2011, the Williams Institute published research which included the rates of marriage and divorce for same-sex couples. As reported on, the results included the following:

  • Almost 150,000 couples of the same sex have been married (or have registered as partnerships or civil unions).
  • Approximately 1 percent of the number of married or registered gay couples gets divorced every year, compared to 2 percent of married straight couples.

The regulations and laws governing same-sex divorce are in flux and changing quickly, as more states legalize same-sex marriage. To further confuse the area, some states which forbid same-sex marriages have allowed same-sex divorce (such as Maryland and Texas).

Massachusetts law

Fortunately, things are a little simpler in Massachusetts, which recognizes both same-sex marriages and same-sex divorces. All divorces in this state are treated in the same manner, regardless of whether same-sex couples or heterosexual couples are involved. However Massachusetts does require that all couples seeking divorce must reside in this state for one year or more prior to filing divorce papers.

This gives married gay couples a decided advantage over unmarried gay couples, because it allows such couples to utilize state procedures and rules for divorces. Unmarried couples must often rely on different courts and procedures to legally divide their property and to resolve child custody issues.

There are still a few issues making same-sex divorces tricky. For example, a divorce settlement usually takes into account how long the relationship has existed. A gay couple may have lived together for many years before the state decided to allow gay marriage. Thus, should their relationship be considered of long length, or of the shorter length of their legal marriage?

The Massachusetts statutes governing alimony define "length of marriage" as the months from the legal marriage to the service of the petition or complaint of divorce, but allows the court to increase the period where there is evidence that the parties economic partnership began during cohabitation prior to the marriage. Therefore, a court, when determining the "length of marriage" for purposes of alimony, could find that the economic partnership started at the point when the couple started living together, or on the date when their first child was born.


If you are part of a same-sex couple relationship and you are residing in Massachusetts, and you feel that you need to have your marriage dissolved, you should contact an experienced family lawyer, who will counsel you, based on the facts of your situation, how best to go through the legal procedures and receive the right and remedies you deserve.