Prepare for the possibility of a same-sex divorce

On Behalf of | Aug 3, 2022 | Divorce |

Marriage equality was won after a long battle, and now that federal law mandates it, the laws for heterosexual and non-heterosexual divorces are the same. However, there are some unique challenges that some same-sex divorcees may face when navigating the divorce process.

The process

For heterosexual and non-heterosexual marriages, the path to divorce is the same. There is no differentiation in marriage laws anymore.

Indeed, the way that property is treated in a divorce is also the same for heterosexual and non-heterosexual divorces. Though, opposite-sex couples have been able to marry for the entirety of our country’s history, the marital estates of heterosexual and non-heterosexual divorcees can look much different.

This is because the time a couple spent prior to marriage is often much greater for a same-sex couple than an opposite-sex couple. Some same-sex couples were together for years or even decades before the law allowed them to marry. As a result, the marital estate for these couples may be much smaller than their non-marital estates.

For example, the family home may have been purchased together, but due to unfavorable treatment of same-sex couples, the couple may have put the family home in only one person’s name. This could make it harder for the other spouse to have a fair share of the home’s value after they divorce.


Same-sex couples may have raised children together, but the law has not always fully recognized their parental rights. If only one spouse has a biological connection to the children, this could make things harder for the other parent to claim parental rights after divorce.


Some ways to avoid these problems are to make occupancy agreements, to sign pre-nuptial agreements and post-nuptial agreements, and to move property into a trust. They key is to talk about this stuff now. Do not wait for a split because at that point, a contentious and expensive Ohio legal battle may be inevitable. But, for couples that prepare for the possibility of divorce, both parties are protected.