Issues in Same-Sex Divorces 

Same-sex spouses—just like opposite-sex spouses—face domestic disputes or other issues that may lead them to consider divorce. Do divorcing same-sex couples have the same rights as divorcing opposite-sex couples? Is the process inherently more difficult? What are the defining issues? 

If you’re a partner in a same-sex marriage who is considering divorce, has already begun the process, or has been served divorce papers by your spouse in or around Franklin, Tennessee, reach out to Middle Tennessee Family Law. Our divorce attorney has the experience, knowledge, and resources to help you navigate the process of divorce, which can be tricky given the unclear nature of some of Tennessee’s laws. Divorce Attorney Tiffany Jones serves clients throughout Middle Tennessee, including Murfreesboro and Nashville. 

Same-Sex Marriage in Tennessee 

Same-sex marriages became legal in Tennessee the day that the Obergefell decision was released. This means that officially recognized same-sex marriages enjoy the same rights under state law as do heterosexual marriages. Officially recognized means that residency requirements have been met and a marriage license has been obtained. Residency requirements mean you have to have lived in Tennessee for six months and intend to stay in the state. 

An officially recognized marriage, whether same-sex or heterosexual, is also subject to Tennessee’s divorce statutes, including division of property, child and spousal support, and child custody and visitation rights. If a couple lives together and claims that qualifies as a marriage without going through the state-mandated process, the relationship does not necessarily meet the threshold for official marriage and divorce recognition. The state of Tennessee does not allow for common law marriages. 

Common Issues in Same-Sex Divorces 

One issue looming over a same-sex divorce is whether the couple lived together prior to entering into an official marriage. This directly affects the division of property and other issues. For instance, assets acquired during the time of marriage, no matter who acquired them, are considered marital property. Assets acquired before the official marriage are considered separate property not subject to division upon divorce. 

Many same-sex couples prior to Obergefell had no choice but to live together and consider themselves a married couple, even using the language of husband and wife. This weighs heavily on the division of property since it tasks the court with deciding when the marriage actually began. For instance, if one partner acquired a piece of property while living together before their official marriage, is that property separate or marital? 

If the same-sex couple has a child or children through assisted reproduction, is the non-biological spouse subject to child and spousal support obligations as would a biological father in a heterosexual marriage? The non-biological spouse can argue that the child is not theirs absent an adoption. Courts nationwide have been leaning toward a yes answer—the non-biological spouse is subject to child and spousal support obligations. This is called “paternity presumption.” 

Following Obergefell, the Supreme Court in 2017 extended adoption rights to same-sex couples in its decision in Pavan v. Smith. Under this ruling, courts have adopted the paternity presumption in cases in which assisted reproduction is involved. 

Alimony or spousal support can also be affected by the length of time an officially married same-sex couple lived together prior to marriage. This can loom large since alimony—whether the court orders it and under which terms—usually hinges upon the length of the marriage. Spending time together before official marriage can be considered in determining the length of marriage in issues of alimony as well as child support. 

Of course, when it comes to divorce, tax issues can loom large when assets are divided. Once again, if the couple was living together as if married before officially being married, the tax liabilities can be larger and may affect one spouse more than the other. A skilled family lawyer can help you and your loved ones navigate these complex tax issues. 

Practical & Purposeful Legal Guidance 

Same-sex divorces in Tennessee—and across the nation—are complicated by the recency of legally recognized same-sex marriages. Court precedents are still evolving, and legislatures have been slow in clarifying matters, here and elsewhere.  

The best solution is to work out a divorce settlement agreement before going to court to ask a judge to decide issues vital to the future of both spouses. Courts will generally approve these agreements unless they are too one-sided, favoring one spouse over the other.  

Whether you hope to agree amicably among yourselves on the terms of your divorce, or circumstances dictate a divorce court proceeding, rely on Middle Tennessee Family Law to help you chart your path forward. We can discuss your situation with you and advise you of your legal and practical options, then help you pursue your path to dissolution of your marriage. Reach out to us immediately for an initial consultation.