Same Sex Marriage and Divorce in Washington

Under current Washington State family law, divorce for married same sex couples is really the same as for straight couples. As your Seattle Family Law lawyer will tell you, a marriage is a marriage no matter the genders of the parties, so a divorce is the same as well. However, there can be a few wrinkles that I will discuss below.

The History of Same Sex Marriage in Washington State

This ability for same sex couples to marry and divorce was of course not always true. For most of our history Washington State law did not recognize same sex couples as a family unit. Some years ago Washington developed domestic partnerships, which allowed same sex couples to register as a domestic partnership, which gave them the same rights to divorce as married couples. Thus, our Seattle divorce law firm can assist all LGBTQ divorce and family law issues.

A few years after that Washington finally moved to allow same sex couples to marry. At that time, most domestic partnerships were automatically converted to marriages. (There was some exception for senior couples who elected the domestic partnership option instead of marriage to avoid impacting social security and pension benefits.)

Therefore today many same sex couples are either married by way of a domestic partnership or married directly. If the couple is not married, it should be because they have chosen not to be, and would have the same status as any other unmarried couple. If you have any concerns or questions about your status, contact your Seattle divorce law firm for advice.

Special Issues for Same Sex Couples

A married same sex couple has the same rights and process to divorce as any other married couple. However, there are a few special issues to be aware of.

First, it is possible that the couple has moved from a different jurisdiction where they were not able to marry (such as a different country). If they wish to be married, they should move ahead with formalizing a marriage after they arrive here.

If you moved here from an area that did not allow same sex marriage, you may want to talk to a Seattle divorce lawyer. If they have not formalized a marriage since moving to a location that allowed it, then presumably you will simply be treated as an unmarried couple.

Artificially Short Term Of Marriage

Another issue is that at the time of divorce the marriage may not have been for as long a term as it might have been if they had been allowed to marry earlier. This can affect property division and some benefits under certain circumstances. For instance, military spouses acquire certain pension rights once the couple has been married 10 years.

More commonly, property that was acquired prior to marriage is often treated as separate property, while property acquired during marriage is more typically treated as community property. Thus it may be necessary to argue the circumstances that lead to the couple marrying later than they might otherwise have done. We would want to look into whether the Committed Intimate Relationship doctrine might apply to create community rights prior to the date of marriage. Also, the court does have a certain amount of discretion to divide property as it finds fair under the circumstances.

Similarly, alimony is often linked to the length of the marriage, though there is no specific formula. Again, this could require argument about the special involuntary circumstances related to the length of the marriage. If you and your spouse married later than you would have done had marriage been allowed earlier, make sure and discuss this with your Seattle divorce law firm.

Is Getting Custody Difficult?

Finally, an issue that may arise more often in same sex marriages, but not exclusively there, relates to any children the couple may have. If one spouse is not a biological parent of a child, and there has not been an adoption or other process to create a legal parent child relationship, then sorting out post-divorce parenting may be more complicated.

As our understanding of what constitutes a family as expanded, there has been a need to develop new legal doctrines to address non-traditional families. One of those doctrines is called “De Facto Parentage” which has been codified in RCW 26.26A.440. Under this standard, on non-biological parent can still be found to be a legal parent if they have been acting in that role. Specifically, the court must find:

  • The de facto parent resided with the child in the same household;
  • The de facto parent assumed the role of parent without compensation;
  • The de facto parent parented long enough to develop a parent-child bond; and
  • A legal parent of the child fostered the de facto parent’s relationship with the child.

These are the kinds of issue you should make sure you discuss with your Seattle family lawyer when you meet.

Is Adoption Harder For Same Sex Couples?

Washington law permits same sex couples to adopt, and permits LGBTQ individuals to adopt. Therefore there should not be a problem with one partner being able to adopt the biological child of the other partner with that partner’s consent.

It is possible that finding an outside couple or agency willing to consent to adoption of a child by a same sex couple could be more difficult, as prejudices still exist. A very helpful online resource for more information is Lifelong Adoptions.

Call Seattle Divorce Services Today To Discuss Divorce for Same Sex Couples

If you wish to separate from a same sex partner, you can discuss your options with a Seattle divorce law firm. To set an appointment contact us through the form on our website or call us at 206-784-3049 or use the form on our website to schedule an appointment.