Mixed-race lesbian couple having a disagreement in kitchen

Issues in Same-Sex Divorces

Shep Law Group Sept. 15, 2023

Unfortunately, couples in same-sex marriages who are seeking a divorce may face other issues (that straight couples may not have) when deciding on alimony, property, and parental rights, as well as when the marriage actually started. 

At Shep Law Group, I have the expertise and diligence to advise and guide clients in complicated family law matters involving same-sex divorces. Our practiced Idaho family law attorneys can fully explain the vital issues in gay divorces and help you navigate crucial decisions in your divorce. We proudly serve clients across Boise, Meridian, Ada County, Canyon County, and surrounding communities throughout the state of Idaho. 

Same-Sex Marriage in Idaho 

Same-sex marriage – also referred to as gay or LGBTQ+ marriage – is a marital union between two people of the same gender identity or sex. Gay marriage was legalized on October 15, 2014, after the decision of the U.S. District Court for the District of Idaho in Latta v. Otter

Furthermore, same-sex couples that are lawfully married will have similar rights and responsibilities just like other married couples. However, there are some challenges that gay couples may encounter when dissolving their marriage. 

Common Issues in Same-Sex Divorces 

Getting a same-sex divorce in Idaho is quite straightforward. However, in contested divorces, the courts may be called upon to help resolve certain marital dissolution issues. Here are some issues that are peculiar to gay divorces: 

Determining When the Relationship Started 

When resolving some divorce issues like property division or alimony, the court may consider the length or duration of the marriage. However, depending on the surrounding circumstances of the marriage, it is not always easy to determine when the relationship really commenced. Even if the partners were already dating or engaged before same-sex marriage was legalized in Idaho, the family court would start considering when gay marriages were recognized in the state. 

Asset Division Issues 

Under Idaho law, couples in same-sex marriages must distribute their community property – property and assets acquired during the marriage – equally during divorce. However, in a situation where the gay or lesbian couples were living together, cohabiting, and accruing assets prior to their lawful marriage, differentiating between community and separate property may be problematic. 

Child Custody and Child Support Issues 

Generally, LGBTQ+ couples seek assisted reproduction or artificial insemination to conceive. As a result, only one spouse will be biologically related to the child. The non-biological parent will only have parental rights after adopting the child. In a situation where the non-biological parent didn’t adopt their partner’s child or finalize the adoption, they may be denied child custody or support rights. 

For example, if the non-biological parent’s actions led to the relationship breakdown, the aggrieved biological parent may deny child custody and parenting time to their partner because they don’t have similar parenting rights over the child. Likewise, the other spouse may deny their parental or even refuse to provide financial support to the child. 

Tax Issues 

Furthermore, lawfully married same-sex couples can file their income taxes jointly to benefit from lower tax brackets, deductions, and credits. However, if the gay couple lives in a non-recognition tax state, this may be difficult or impossible. In fact, the state tax authorities may treat them as single individuals. Thus, LGBTQ+ couples may have to settle for different tax filing statuses, which can make their divorce even more complex. 

Spousal Maintenance 

Finally, when awarding spousal maintenance in Idaho, the court may consider the length of the marriage to determine the right amount, duration, and type of alimony. Unfortunately, the court will not consider the same-sex couple’s pre-marriage time together to determine spousal maintenance. 

You Deserve Clear Answers 

Navigating the different issues that are peculiar to same-sex divorces can be difficult and overwhelming. At Shep Law Group, we’re committed to guiding clients through the complex procedures involved in gay divorces. As your attorney, we can work to understand your specific situation, work intelligently with all parties involved to settle key divorce issues peacefully and help make your transition as seamless as possible. 

Contact us at Shep Law Group today to schedule a simple case assessment with dedicated divorce attorneys. Our experienced legal team has the reliable advocacy and personalized legal guidance you need to navigate crucial decisions in your same-sex divorce. We’re proud to serve clients across Boise, Meridian, Ada County, Canyon County, and surrounding communities throughout the state of Idaho.