The Landscape Of LGBTQ Divorce

before post

Lesbian couple standing side-by-side with their heads down


In 2015, the Supreme Court ruled the right to marry was a fundamental right guaranteed to same-sex couples under the constitution. Obergefell v. Hodges, 576 U.S. 644. Thus, beginning in June 2015, all States became required to recognize marriage licenses of same-sex couples. Same-sex couples possessing a marriage license previously only valid in recognizing states were now nationally recognized.

Despite this progression in the law, Obergefell still raises significant legal and financial issues which remain unsettled. Specifically, the finances of divorcing same-sex couples may be greatly impacted depending on the date the marriage began. Registered marriages that occurred in states who recognized same-sex marriage will be retroactively recognized by all states throughout the nation.

LGBTQ Divorce

However, there is some question as to whether non-ceremonial marriage dates can be applied prior to the Obergefell date, June 2015. The answer determines how assets are held and transitions that occurred prior to the ruling will be treated.

This unique legal question can have major financial ramifications for same-sex couples.  Alimony/Spousal Support is strongly influenced by the length of a relationship, and division of marital property is in question, especially if the jurisdiction is a community property state.

Some couples may have a marriage certificate that post-dates the true beginning of their commitment to one another, thus nullifying any chance of backdating an informal marriage opportunity. Many same-sex couples established their commitment through, civil union, domestic partnership, and common law marriage; others chose to wait until ceremonial marriage became legal.

Civil Union or Domestic Partnership

The legal date of marriage for couples committed to one another through a civil union or domestic partnership prior to Obergefell varies by state.

  • Connecticut, New Hampshire, and Rhode Island recognize the date on which the preexisting relationship was converted into a marriage, leaving same-sex couples at a time disadvantage during the divorce settlement. (Peter Nicolas, Backdating Marriage, 105 Calif. L. Rev. 395)
  • Delaware, Illinois, and Washington backdate to the date of civil union or domestic partnership, but this can still leave same-sex couples at a disadvantage compared to heterosexual counterparts. Had marriage been legal at an earlier date some couples would have married prior to civil unions and domestic partnership options being available. (Peter Nicolas, Backdating Marriage, 105 Calif. L. Rev. 395)
  • Hawaii gives same-sex couples two marriage dates which are used under different circumstances.
  • In Oregon, the date of marriage is unclear because the state has no law providing for a merger or conversion of domestic partnerships into marriage. A couple must meet three requirements to qualify for legislative backdating, making it difficult to obtain. (Peter Nicolas, Backdating Marriage, 105 Calif. L. Rev. 395)
  1. The couple resides in a state which previously allowed for civil unions, domestic partnerships, or another marriage alternative
  2. The couple entered one of the above relationships
  3. The state the couple resides in has legislatively provided for backdating

Common-Law Marriage

Until Obergefell, the law prohibited same-sex couples to obtain a ceremonial marriage certificate. Some states recognize common law marriage in addition to ceremonial marriage. Common-law marriage provides the same rights, privileges, and responsibilities as a ceremonial marriage. There are per se requirements to establish a common-law marriage, but the following factors are strictly considered by a court to recognize its validity:

  1. The length of time cohabitating
  2. Shared financials, filing taxes jointly, banking etc.
  3. Having children together
  4. Having a ceremony in front of friends and family, declaring love for each other, particularly with a religious or spiritual minister
  5. Wearing an engagement ring
  6. Celebrating an anniversary
  7. Holding themselves out to the world as spouses
  8. Showing affection towards each other publicly
  9. An intent to be married

Common-Law Marriage certifications are given to the couple by the courts and are helpful when going through divorce. Only a few states recognize common-law marriages, and each has specific stipulations as to what relationships qualify:

Jurisdictions With Common Law Marriage:

District of Columbia Provide Statute
Colorado (Colo. Rev. Stat. Ann. §14-2-109.5.)
Iowa (Iowa Code Ann. §§252A.3 and 1A.)
Kansas (Kan. Stat. §§23-2502 and 23-2714.)
Montana (Mont. Code Ann. §40-1-403.)
New Hampshire (N.H. Rev. Stat. Ann. §457:39.)
Oklahoma  case law has upheld common law marriages
Rhode Island  case law has upheld common law marriages
Texas (Tex. Fam. Code §2.401.)


Texas does not formally recognize Obergefell retroactivity but provides that it could. It is not egregious in its ruling. It sidesteps the question through civil procedure, and unfortunately, they are not incorrect. They essentially say we cannot say one way or the other because it hasn’t been decided by our Texas supreme court.

Same sex couples in Texas entered a common law marriage can file a “Declaration of Informal Marriage” with the county clerk to declare the date of their commitment.

Utah (Utah Code Ann. §30-1-4.5.)


In Utah same-sex couples can petition a court to formulate the date of common law marriage if the relationship is still existent or within one ear of the relationship ending.

Jurisdictions Previously Allowing Common Law Marriage

States which did allow common law marriage will still recognize it as valid if entered into prior to the date it was eliminated by the state.



 (If the marriage was before January 1, 2017)— (Ala. Code § 30-1-20 (2018).)
Florida (If the marriage was before January 1, 1968)— (Fla. Stat. Ann. § 741.21.)


(If the marriage was before January 1, 1997)— (Ga. Code Ann. § 19-3-1.1.)


(If the marriage was before January 1, 1996)— (Idaho Code Ann. – Title 32 – Chapter 02 §32-201.)


(If the marriage was before January 1, 1958)— (Ind. Code Ann. § 31-11-8-5.)


(If the marriage was before October 10, 1991)— (Ohio Rev. Code Ann.§ 3105.12.)
Pennsylvania (If the marriage was before January 1, 2005)— (23 Pa. Cons. Stat. § 1103.)
South Carolina (If the marriage was before July 24, 2019)— (Stone v. Thompson, 426 S.C. 291 (2019).)




South Carolina recognizes Obergefell retroactivity but has provided significant obstacles to the actual application. In short, they say “yes, it is retroactive, but we are going to do some mental and judicial gymnastics and make it, so it doesn’t apply.

The above States recognize common law marriage, but not all of these States recognize Obergefell retroactively to allow for common law marriage. (Obergefell being same-sex couples.)

Retroactive Acknowledgment of Common Law Marriage

While Obergefell stipulated licenses from states where same-sex marriage was established prior to 2015 would be recognized by all states, it did not address how same-sex couples who sought a divorce, who seek recognition through common law marriage would be addressed. A few states will retroactively acknowledge a common-law marriage between same-sex couples who were acting as a married couple prior to 2015, allowing same-sex couples to recapture benefits lost to time.

The following jurisdictions recognize Obergefell retroactivity precedent without issue:

  1. Colorado
  2. District of Columbia
  3. Montana
  4. Pennsylvania

After a long-sought victory, as of June 26th, 2015, the constitution guarantees same-sex couples the right to marry, but as Chief Justice Roberts opined in the first sentence of his dissent, “From the dawn of human history until a few years ago for every people known to have populated this planet, marriage was defined as the union of a man and a woman.” We are dealing in the realm of “The New.”

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