Same-sex couples face unique obstacles during divorce

Before the Supreme Court ruling that made same-sex marriage legal in all states, many same-sex couples faced enormous difficulties when trying to legally establish lives together. Although prior to this ruling gay marriage was already legal in Colorado, couples who moved out of state then had to face the reality that their spouses were still not eligible for a wide array of benefits that other married couples enjoyed, including the right to divorce. Even now, same-sex couples continue to face added worries when they decide to end their marriages.

Before same-sex marriage became the law of the land, some couples were married in states where it was legal but where the law legalizing same-sex marriage was later overturned. These couples were simply doing all that they could at the time to obtain the same legal protections as heterosexual married couples, but these former unions can sometimes complicate the divorce processes for these same-sex couples. Exactly where and when a couple was married can become a pivotal issue during proceedings.

Prenuptial and post-marital agreements can help smooth out some of the possible road bumps that these couples might face. For instance, a same-sex couple that was once unable to legally marry might have otherwise lived their lives as a married couple prior to marriage, including commingling finances and purchasing a home together. If they then married after the SCOTUS ruling but then later decided to divorce, virtually all of the assets acquired before the legal marriage would be considered individual assets rather than marital. Specifically addressing these assets in some type of marital agreement can prevent any one individual from being wrongly denied his or her fair share in a settlement.

There is no denying that divorce can be more involved and complicated for same-sex couples than for heterosexual couples, but that does not mean that it is impossible. Prenuptial agreements are often excellent options for Colorado couples who want to make sure that both individuals are fully protected in the event of divorce. For couples who were unaware of the possible issues that could arise during divorce before their marriages, post-marital agreements are often just as effective.

Source:, "Planning Challenges Persist for LGBT Clients Despite Marriage Ruling", James J. Green, Sept. 27, 2015

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