Same Sex Divorce

Massachusetts is one of 33 states that recognize and grant same sex marriages. Consequently, the laws of divorce should apply to them as well.


A quandary in this area recently surfaced in Utah where a federal court ruled that the state’s law defining marriage as between a man and a woman was unlawful as it violated the Due Process and Equal Protection provisions of the 14th Amendment to the US Constitution. The ruling is under appeal.


For gay couples living in Utah who were married in one of the cooperating 33 states, their marriage was not recognized in Utah. As a result, many experienced difficulties when trying to divorce, which meant determining custody of their children and how their assets were to be divided. The possibility of moving to another state that recognized same sex marriage, establishing residency there and then filing for a divorce was expensive and impractical.


For now, though, Utah’s same sex couples can be married. For those seeking a divorce, the federal court ruling means that they are now able to turn to the state’s divorce laws to enforce their rights. Some divorce lawyers in the state predicted a boon for divorce attorneys who will now have a whole new clientele who will have the same issues as any other divorcing couple.


Massachusetts approved same sex marriage in 2003. Since 2004 when it became effective, gay couples have enjoyed the same protections afforded under the state’s marriage and dissolution laws. Massachusetts same sex married couples, however, should be aware of certain potential problems. For instance, although the US Supreme Court ruled that the federal government could not treat same sex married couples differently regarding tax and federal benefits, the court still allowed individual states to refuse to recognize a gay couple’s married status.


For questions regarding your rights as a same sex spouse in Massachusetts and in states where such marriages are not legally recognized, consult a Boston divorce attorney who has experience with same sex couples and the laws affecting them.


Spousal Support


Like many states, Massachusetts uses the length of a marriage as a factor in determining spousal maintenance. Since same sex marriage is a recent phenomenon in the state, couples who were together from before 2004 may not be able to claim that their marriage has lasted longer than that. The same dilemma exists for couples seeking a dissolution who lived together in another state where same sex marriage was not legal and who then moved to Massachusetts and were married.


Also, if a married couple moves to a state that does not recognize same sex marriage, they may not be able to avail themselves of that state’s tax benefits.


Out-of-State Orders


Another potential problem is that in those states that choose not to recognize same sex marriages, it will likely not recognize same sex divorce judgments or enforce their provisions. Consequently, a party may find that custody or support orders will not be enforced in their new state.




One remedy for same sex couples wishing to marry in Massachusetts or in a state where it is legal, is to draft a prenuptial agreement. Even if they move to a noncooperative state, the courts there will probably enforce the agreement under contract law. The negative feelings about a prenuptial agreement should not surface for same sex couples because of the possibility of one or both parties moving to a noncooperative state and separating there and not encountering problems when divorcing. A prenup is also a tool that can build a stronger relationship.


If you live in Boston, concerns about same sex divorce or in preparing a prenuptial agreement for same sex couples should be directed to Doug Lovenberg, a Boston divorce lawyer who is familiar not only with the intricacies of Massachusetts divorce laws but how they apply to your situation. As your divorce attorney, he can carefully draft a prenuptial agreement to ensure its enforcement here or in a noncooperative state.