Same-Sex Divorce: Is The Process Different?

same-sex-marriage-divorce-rateSome aspects of same-sex divorces are similar to traditional divorces. However, sometimes same-sex divorces can have additional legal issues, including but not limited to: the validity of the marriage, when and where the marriage began, what rules exist with regard to the couples? finances, if both spouses are legal parents, and/or why it?s important to legally end a partnership. Home states for many same-sex couples did not recognize their relationships, therefore couples decided to travel to another state to get married. By doing so, every couple with multiple registrations has to take extra steps as they separate.

Is It Time To Legally End Your Union?

If you were married, registered, or a partnership was created, you are legally and financially bound to your partner, unless you terminate those arrangements. Recent rulings at the federal level have changed legal aspects of same-sex marriage and divorce, so if your union didn?t seem legally significant when registered, time and recent changes may affect the scope of those decisions.

Tips On How To End Your Same-Sex Union/Marriage

Some of the easier registrations to terminate are those with employers, cities, and counties. Each will have its own termination form and for the most part all that is required is completing and submitting a form. In some instances, your partner?s signature may not even be required, however it is best that you notify your ex-partner of each action taken in writing so that should an issue arise later, you have documentation.

State registrations or marriages are generally much more complicated to terminate. In situations where your current home state does not recognize same-sex unions or marriages, your local court judge may refuse to grant a divorce, even with regard to the current federal ruling. A judge may be even more reluctant when faced with dealing with registrations from several states. And although it may seem easier to return to the state where you were married or partnered, most states have residency requirements in order to file for divorce. ?In Illinois, for example, you cannot file for divorce unless you have resided in the State for at least ninety (90) days. By checking with the state in which you were married, you can determine the requirements for your specific circumstances.

Conflict and Divorce

No matter who is involved in a marriage, the basic premise remains the same when facing divorce: you want the best and most painless way for you and your family to get through this most difficult time. As such, there are several options to consider as you work toward choosing a method of resolution. Options are available to you to achieve resolution if you and your spouse wish to settle your dispute without going to court: mediation, negotiation or collaborative divorce proceedings.


Negotiation, simply defined, is discussions geared toward reaching an agreement. Negotiation often involves each spouse deciding together how to divide property, or it can mean that you each hire lawyers who negotiate on your behalf to carry out your wishes.

Emotions can complicate issues such as parental rights and division of property. However, if you are able to negotiate directly with each other, you will avoid court and lawyer fees. What you will need is a clear understanding of not only your position, but that of your partner, and the ability to keep a strict focus on the end result while showing that you are open to compromise.

If this option is not for you, a lawyer can be hired to negotiate for you on your behalf. Your lawyer will work with your partner?s lawyer toward resolution that involves the exchange of possible settlement options until an agreement is reached.


Mediation plays out with a neutral negotiator, or mediator, who works with each of you to resolve disputes using effective communication regarding your needs and interests until an issue is resolved. A mediator is not a judge, and mediators do not make legal decisions or issue rulings.

Mediation may be an appropriate option in same-sex divorces. Often, same-sex spouses may have been accumulating property together for much longer than they have had the right to marry. As such, mediation may be an appropriate venue for itemizing assets or debts that, although were not acquired during their legal marriage, were in fact acquired after the couple decided to enter into a marriage-like arrangement but were prohibited from legally marrying. If this is the case, mediation may be best for you.

Further, something to note is that where a couple has children, Illinois court rules require parties to complete at least four (4) hours of mediation if a divorce action is filed. So, many attorneys will encourage parties to attend mediation even before a divorce is filed, as it may be required anyway if or when a Petition for Dissolution of Marriage is filed with the Court. There are exceptions to the mediation requirement, but only the Court can make this determination to waive mediation once a case becomes contested.

Collaborative Divorce

A relatively new method is Collaborative Divorce, which contains elements of lawyer-assisted negotiations and mediation. Each party hires an attorney, who then advocates for each client. Both spouses and lawyers sign a written agreement that the case will not go to court and agree instead to settle it. If one party chooses litigation, each attorney withdraws and the couple must choose new representation. The new set of attorneys then begin a new representation.

Contested Divorce Proceedings

In the event an agreement cannot be reached, most spouses will hire representation, and all disputes will be submitted to a judge for resolution, except as stated above with regard to Court-ordered mediation. Although hiring an attorney is not a Court requirement, it is not advisable to represent yourself in any divorce proceeding. If you are considering this option, be prepared to spend a lot of time organizing documents and researching the law to create a solid legal argument that supports your position, as well as preparing yourself to present your case in front of a judge.

Further, this likely will not be a quick or cost-effective method as many jurisdictions, particularly in Illinois, only schedule pro se dockets for certain days/weeks of the month. Additionally, given how many Court dockets are scheduled, a frequent result is that cases involving attorneys are often heard first since the Court is acknowledging of the fact that attorneys are being paid for their time to appear that day. As such, pro se litigants often end up having to take a significant time off from work to appear at every court appearance and wait for their turns to speak with the Judge. If you are represented by an attorney, the attorney can usually appear on your behalf at procedural court appearances such as status hearings, meaning you will only be required to appear when it is necessary.

Hiring the right lawyer for you is essential to achieving a settlement or resolution that is best for all involved. The legal team at Sherer Law Offices can help you navigate the divorce process and provide support should disputes arise.

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