Before the Supreme Court’s 2015 decision on Obergefell v. Hodges, which guaranteed same-sex couples equal protections under the law and legalized same-sex marriage, same-sex marriage laws in the U.S. differed from state to state.
The rights of same-sex couples across the nation were subject to patchwork laws and recognition, further complicated by the Defense of Marriage Act, which let states deny marriage equity to same-sex couples when these couples were married legally in other states. This created a situation where a same-sex couple could get married in one state but find that their marriage was not recognized in other states, creating challenges if the couple moved to, or lived in, a state where their marriage wasn’t recognized, and they wanted to file for divorce.
Washington state has allowed same-sex domestic partnerships since 2007, but according to the Human Rights Campaign, civil unions and domestic partnership laws “created a separate but equal standard.
At the federal level, couples were denied access to more than 1,100 federal rights.” On November 6, 2012, Washington state became the first of three states grant same-sex couples equal marriage rights through popular vote, joining six other states and Washington, D.C. where same-sex marriage had been legalized by the courts. With the passage of the law, couples who had gotten legally married in other states automatically had their same-sex marriages recognized under state law.
The 2015 Obergefell Supreme Court decision had the effect of requiring all states to recognize same-sex marriage. Same-sex couples were finally able to get marriage licenses in all 50 states, and in all 50 states, courts would be required to recognize same-sex divorce. Since the passage of Washington same-sex marriage laws, and the Supreme Court ruling, LGBTQ+ couples follow the same procedures that heterosexual couples would follow when filing for divorce under Washington state laws.
This doesn’t mean that LGBTQ+ divorce is always straightforward. Same sex couples can face additional questions if they entered a domestic partnership before Washington state made same-sex marriage legal. And while Washington recognizes the parentage of same-sex couples even when only one partner is biologically related to the children, issues with parentage can still arise in LGBTQ+ divorce.
In this article, we’ll explore some of the unique challenges that LGBTQ+ couples can face and explore how collaborative divorce can offer couples a path forward.
The two primary issues facing LGBTQ+ couples are:
- Same-Sex Unions Formalized Before Same-Sex Marriage was Legalized by the Courts
- LGBTQ+ Child Custody
Same-Sex Unions Formalized Before Same-Sex Marriage was Legalized by the Courts
If you entered a domestic partnership before Washington recognized same-sex marriage and before the Supreme Court ruling, you may need to take steps to see whether your partnership is recognized as a domestic partnership or marriage under Washington state law.
Whether you are married might even up for question if you entered a domestic partnership before Washington enacted same-sex marriage laws or if you entered a domestic partnership in another state and never registered your domestic partnership in Washington.
For example, according to the Washington Secretary of State, if you and your partner entered a state domestic partnership before same-sex marriage was legalized in the state, your domestic partnership may have automatically been converted to a marriage on June 30, 2014 (unless one of you was 62 years of age or older; in this case, your domestic partnership would not have been automatically converted).
If you entered a city and county domestic partnership, however, your domestic partnership would not have automatically been converted to a marriage.
If you entered a civil union or domestic partnership in another state and moved to Washington, and lived in Washington for more than a year, then you would have had to register as domestic partners to have your partnership formally recognized by Washington state and to keep the rights and responsibilities conferred upon domestic partners (and to have had your domestic partnership converted to marriage on June 30, 2014).
Things could get confusing if you registered your partnership with the city, but not the state after living in Washington for more than a year. If you are not sure about whether you registered your domestic partnership with the state or the city, and aren’t sure about the status of your partnership, you may want to check state records. You can search the State Registered Domestic Partnership Database here.
A domestic partnership can be terminated when you marry, when one partner passes away, or when individuals file for termination of the partnership. Regardless of whether you are married or in a domestic partnership, you’d still need to formally dissolve your marriage or partnership by filing for divorce or dissolution through the courts. The process for dissolving a marriage and dissolving a domestic partnership under Washington state law is the same. You’d need to file paperwork, divide assets and debts, and create a child custody and parenting plan if you have children together.
LGBTQ+ couples whose relationship status changed as state and national laws changed may want to speak to a divorce lawyer familiar with LGBTQ+ divorce law. Your lawyer can review your situation to help you better understand your formal legal status under Washington state law, and how this status could impact your rights and your divorce or dissolution of domestic partnership.
If you have been living together with your same-sex partner for a long time, but your domestic partnership was not formally registered with the state, then your situation could be more complicated because you may not be protected under Washington community property laws during the period you were not formally married or in a domestic partnership. That said, if you share property, bank accounts, and other assets, you may still need to work out a way to divide property and assets, and some same-sex couples may have taken legal steps (outside the context of marriage) to blend their financial lives.
The collaborative divorce process allows same-sex couples a more peaceful path forward, whether your domestic partnership or marriage is formally recognized by Washington state. For example, if due to changing laws, you never formalized your domestic partnership at the state level, but intended to do so, you and your partner can use the collaborative process to approach your divorce, separation, and your division of property like a married couple in Washington state would.
If you were never formally married or never entered a domestic partnership, you may not need to formally file for divorce or separation with Washington courts but can still use a collaborative process to divide assets, debts, and property, especially if you and your partner used other legal means to share assets, debts, and property.
And if you are formally married, or in a domestic partnership, the collaborative divorce process allows you and your partner to negotiate your divorce without having to take your divorce case to trial. You’ll still need to formally file for divorce with the courts, but aspects of your divorce, like division of property, debts, and assets, can be negotiated outside of court through the collaborative divorce process.
With collaborative divorce, both parties are each represented by their own collaborative divorce lawyer, and both parties agree to negotiate their divorce settlement outside of court. Collaborative divorce is different from mediation, in that with mediation, the mediator cannot offer legal advice or represent either party. Collaborative divorce offers each person the protection of their own legal counsel, with the added benefit that both parties agree to work together to negotiate a peaceful resolution to their divorce.
LGBTQ+ Child Custody
Since the legalization of same-sex marriage in Washington, the state has taken steps to protect the parental rights of same-sex couples, and in many ways, Washington provides some of the most robust parental rights protections for same-sex couples in the nation. Couples who have children while married or while in a domestic partnership would be both considered the child or children’s parents, even if only one parent is the child’s biological parent.
If a person lives in the same household with a child for the first two years of the child’s life and treats the child as their own, Washington law also recognizes this person as the child’s parent. On a national level, however, same-sex couples can sometimes face additional challenges when establishing parentage.
According to the Center for American Progress, the “marital presumption of parentage” is applied unequally across the states and in some cases, across gender lines.
The marital presumption of parentage is the assumption made by the law that the father of a child, when a child is born in wedlock, is the legitimate father of the child. The presumptive of parentage (or the presumption of legitimacy) is so strong, that in cases where a woman’s husband is not the father of the child in a heterosexual union, the mother and child’s biological father would need to take additional steps to establish paternity.
The Supreme Court ruled in Pavan v. Smith that in lesbian couples and in LGBTQ+ couples where one partner gestates a child, the spouse of the gestational partner should be granted the same presumption of parentage that would be granted to the husband in a heterosexual couple. This ruling gave parents with the ability to gestate a child the right to the presumption of parentage (lesbian couples, and same-sex couples where one partner has a womb) but means that couples who cannot gestate a child (same-sex couples where neither partner has a womb, or where couples choose to use a surrogate), must generally seek parentage through surrogacy laws or adoption.
For couples without the ability to gestate, Washington’s surrogacy laws would apply. LGBTQ+ parents who have children through surrogacy or through adoption would typically follow Washington’s law regarding surrogacy agreements (26.26A.750) or adoption agreements.
Couples who want to formalize parentage protections on a national level also sometimes formalize a “second parent adoption.” According to the LGBTQ+ Access Project, “it is still advisable for LGBTQ couples to complete a second parent adoption, when only one parent is on the surrogacy or adoption paperwork. This is because second-parent adoption is a court process that must be recognized by every state in the country.”
Even in cases where Washington law would recognize the non-biological parent as the child’s legal parent, same-sex couples may still want to formalize their parentage through a “second parent adoption.” In this way, couples protect their parental rights even if they move to another state.
Washington law generally affords the presumption of parentage to LGBTQ+ couples when either a parent has raised a non-biological child as his or her own, where one parent is the gestational parent, when parents adopt, or when they enter into surrogacy agreements while they are married. This doesn’t mean that things can’t sometimes get complicated.
For example, another parent could technically have legal parenting rights if surrogacy wasn’t formally established under the law. Under Washington law, both surrogates and a child’s intended parents would need to create a surrogacy contract, with each party being represented by their own attorneys throughout the process.
The surrogate’s rights vary depending on whether the surrogate is a gestational surrogate (meaning the woman who carries the baby has no genetic relationship to the child) or whether the person is a genetic surrogate, where the surrogate’s eggs are used. In this case, the surrogate could have a possible legal parenting claim as the child’s mother, especially if there is no legal surrogacy contract in place. Some LGBTQ+ parents choose to have unique parenting arrangements where a surrogate may continue to have a relationship with the child. In these situations, custody questions can arise if the LGBTQ+ couple divorces and a formal surrogacy contract wasn’t made.
One way that you and your former spouse can honor your custody and family structure, even if you choose to file for divorce, is to use the collaborative process.
When couples use the collaborative process, they agree to create a parenting plan and custody agreement without fighting for custody in court. This eliminates the possibility that a judge might make a decision about child custody that no one in the family wants.
Collaborative divorce allows you and your partner to respect your unique family arrangement and choose the path forward that is best for you and your children.
With the collaborative process, the result will be a formalized divorce and a finalized parenting plan. What’s different, is that you and your partner can work out your parenting plan at the negotiating table rather than in court. Both you and your partner will each be represented by your own collaborative attorney, whose shared goal is to help you, and your former partner, create a divorce agreement and parenting plan that works for your family.
Other Considerations for LGBTQ+ Divorce
Because same-sex marriages and domestic partnerships have only been legalized relatively recently, couples who have shared a home and property longer than these laws went into effect may have decades long partnerships that nevertheless might not be formally recognized by the state.
Let’s say you and your wife or husband have been living together for twenty, or thirty years, or more, long before domestic partnerships were recognized by the state of Washington and long before the Supreme Court made same-sex marriage the law of the land. These situations can create complicated property division issues and questions. By choosing collaborative divorce, you and your former partner can consider the time you spent together building shared wealth.
The length of a marriage can also impact spousal support. Because same-sex couples have only been able to be legally married since 2012 in Washington state (and for a shorter period on a national level), the question of spousal support can be challenging. The collaborative process allows couples in these situations to sit down at the negotiating table and consider the full scope of their relationship, where the courts may have more limited authority.
Contact an LGBTQ+ Collaborative Divorce Lawyer
LGBTQ+ couples enjoy the same protections as heterosexual couples under the law, and this includes the right to divorce. In many ways, an LGBTQ+ divorce will raise the same issues as a heterosexual divorce. Couples will need to decide how to divide property, debts, and assets, and decide about alimony and retirement.
If you have children, you’ll need to create a parenting plan and child support agreement. Yet, because of a history of unequal recognition of same-sex marriages, LGBTQ+ couples can sometimes face unique challenges when they file for divorce. And because LGBTQ+ families are sometimes formed through adoption or surrogacy; these divorces can sometimes raise unique parentage questions and concerns.
The collaborative divorce process gives LGBTQ+ couples a way to divorce on their own terms. It eliminates the risks of taking a divorce disagreement to trial, where a judge might make decisions neither partner wants. That said, the collaborative divorce process isn’t always right for everyone. If your marriage has a history of domestic violence or coercive control, the collaborative process might not be the best way forward.
If you have questions about whether an LGBTQ+ collaborative divorce is right for you, reach out to Truce Law today. Our collaborative divorce lawyers in Seattle, Olympia, Tacoma, and Washington state can help you navigate the unique challenges that can sometimes arise with LGBTQ+ divorce.
This article is for educational purposes only and does not constitute legal advice. Every situation is unique. For guidance specific to your circumstances, consult a licensed family law attorney in your area.