Sad homosexual gay couple after argument

Issues in Same-Sex Divorces

Law Offices of Fisher Wise Sept. 5, 2023

The 50 states had differing viewpoints and laws regarding same-sex unions and marriages prior to the U.S. Supreme Court’s decision in 2015 in Obergefell v. Hodges, which legalized same-sex unions. Writing for the majority, Justice Anthony Kennedy observed that the “right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.”

As a result of that ruling, states now afford same-sex couples the same right to marriage as heterosexual couples, and they also apply equal legal standards to same-sex divorces as to heterosexual divorces. Tennessee has likewise universalized the standards for marriage and divorce for same-sex couples as for heterosexual couples. 

Although same-sex marriage in many states was not recognized until 2015, many same-sex couples, who could not legally get married, lived together as spouses anyway. This dynamic, while completely understandable, can unfortunately create potential difficulties when couples who were together before Obergefell eventually married but then later decide to divorce. The issue becomes how to account for the time together as a couple before marriage was allowed. 

If you’re considering or already in the process of divorcing in a same-sex marriage in or near Chattanooga, Tennessee, contact the Law Offices of Fisher Wise. I am a family law and divorce attorney who will help you sort through the issues involved in your impending divorce and strive for an equitable conclusion to your relationship.  

Same-Sex Marriage and Divorce in Tennessee

Since the Obergefell ruling, Tennessee has applied the same standards for marriage and divorce to both same-sex and heterosexual couples. Although you can get married in Tennessee without being a resident, for a divorce one spouse must have lived in the state for six months and must intend to stay. 

Divorce in Tennessee can either be no-fault or fault-based. The no-fault option requires the couple to admit to “irreconcilable differences” or to have lived apart with no sexual union and no minor children for two years.

Fault-based divorces can be difficult because generally the accused spouse will fight back, and the divorce will likely end up in a courtroom. Fault ranges from infidelity to desertion to criminal behavior to perpetual drunkenness and to cruel and inhuman treatment, among other issues. 

Contested vs. Uncontested Divorces

A contested divorce is one in which the two parties cannot come to a mutual agreement on the terms of the dissolution of the marriage, and thus a judge will have to resolve the couple’s differences and issue divorce terms. An uncontested divorce is one in which the two spouses decide all the issues among themselves, perhaps with the help of attorneys and/or mediators, and then present the settlement agreement to the court.

Actually, Tennessee makes divorce even more user-friendly, if that’s the proper term, since it is possible to use an online service to prepare the paperwork for an uncontested divorce, but like all downloadable forms and services—buyer beware. If your resulting agreement is not concise, clear and thus legally enforceable, you could be looking at trouble down the road. 

Special Issues in a Same-Sex Divorce

Though the outcome of a divorce – or the parameters of a divorce – are basically the same for both same-sex and opposite-sex spouses, there are considerations in a same-sex divorce that likely don’t exist in a heterosexual divorce.

As mentioned earlier, a same-sex couple may have cohabitated in a marriage-style relationship prior to being allowed to legally marry. How to account for that time and any assets or debts accumulated prior to legal marriage? How about biological and adopted children? 

Tennessee does not recognize “common law” marriage. You must get a license and provide proof of identity and age to get married in the state. Thus if you were together in a same-sex relationship prior to getting legally married, that period is not legally recognized.  

When Did the Marriage Actually Commence?

The issues in a divorce are the same for those in same-sex and heterosexual unions – division of property, assumption of debts, child and spousal support, and custody and parenting time. As for the division of property, in general terms, anything acquired by either spouse during the “time of marriage” is considered marital property subject to equitable if not equal distribution upon divorce. But here again, the question of when the “marriage” began becomes a looming issue.

If there are minor children involved, the issues of child support and alimony can also be more difficult if the union began before same-sex marriage became legal. Courts generally take into account the length of marriage in resolving child and spousal support issues, which can be complicated in unions that began before same-sex marriage was legalized. 

Reach Out for Support

Divorce is a major crossroads in life. You will be leaving the familiar behind, even if it has soured on you, for what may be an uncertain future. It’s best to seek experienced legal advice in making any decision regarding the dissolution of your union. You want to protect your rights and interests while also being fair to the other person who was a major part of your life for some length of time. 

If you’re in a same-sex marriage in or around Chattanooga, Tennessee, and preparing for divorce, you can rely on the Law Offices of Fisher Wise. I will help you navigate the process and hopefully help you come to a mutual settlement agreement with your spouse, so that both of you can move forward with peace of mind. I also proudly serve clients throughout the counties of Marion, Rhea, Sequatchie, Hamilton, Bradley, and more.