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Did marriage equality come with divorce equality?

For couples, regardless of same-sex or opposite-sex, getting married is the same. The law treats all couples the same now, and this is the same, supposedly, for divorce too. However, due to the legal underpinnings and timing, same-sex couples that divorce face unique challenges that should be worked out now, not during a divorce.


For divorcing opposite-sex couples, there has not been a stigma associated with divorce for decades. Indeed, if anything, the current attitude is, “find your bliss.” This is not necessarily the case for Herndon, Virginia, same-sex couples.

Due to the centuries of discrimination and illegality, marriage equality was a hard-fought win. And, some in the LGBTQIA+ community feel guilty about getting a divorce, which is only reinforced by the silence on this topic from the media.

Child custody issues

In the United States, we have hundreds of years of jurisprudence on child custody, and the one thing it all has in common, across all states, is that it is based on having a “mom” and “dad.” In other words, in our country, the law looks to biology, and where there is no biology, legal adoption.

For same-sex couples, this means that if one of them is the biological parent, the other may be treated very differently. And, do not think that hiding the biological parent will help because a DNA test can be ordered.

Property division

If you have been together for years or decades prior to marriage, the property division process in any subsequent divorce will be complicated. And, one of you will likely get much more than the other. This is because, rarely, do couples try to keep property equitably named and titled, and often, that is not possible.

For example, for the family home, if it was bought prior to marriage, one of the spouses may not be on the title, which means there is a possibility a judge may find it is not marital property. This would mean the spouse on the title would get the home. But, this is just one example of how this time before the legal marriage can complicate a divorce.

What should we do now?

For Herndon, Virginia, same-sex couples thinking about marriage or who have lived together for a long period of time unmarried, it is likely a good idea to create a prenuptial agreement or a cohabitation agreement now. If you are already married, a postnuptial agreement is likely needed. Why? Because if you wait for a court to decide your fate, you may end up with a vastly unjust or unfair result.

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