Are There Differences in an LGBTQ Divorce? - Bineham & Gillen

divorceAre There Differences in an LGBTQ Divorce?

March 22, 2021by James Gillen

Since the landmark Supreme Court ruling in 2015 that made same-sex marriage legal in the United States, LGBT couples have had the same marriage and divorce rights as heterosexual couples.

When it comes to divorce, however, LGBT couples will generally experience some differences.

The Basics of the Divorce Process

In Texas, couples can file either a fault or no-fault divorce, meaning you can file for a divorce based on the grounds that neither spouse is responsible for the end of the marriage or list a reason (usually marital misconduct) for divorce. If you file for a fault divorce, you will be responsible for proving that your spouse is responsible for ending the marriage.

The process of divorcing as an LGBT couple is largely the same. Once you file for divorce, the process will include:

  • Division of marital assets
  • Child custody
  • Child support
  • Spousal support

Division of Property

If your divorce goes to court, a judge will separate marital assets and debts between you and your spouse. Since many couples were together or even married before same-sex marriage became legal in 2015, complications can arise with asset division. This can result in the unfair division of property.

Typically, if one spouse purchased an asset prior to marriage, they will keep it in divorce. But depending on the judge’s discretion and whether the couple was seeking marriage before it was legal, the asset may be split between them.

Child Support and Custody

Unfortunately, custody of children is where the most problems arise in an LGBTQ divorce. Most children of LGBT parents were adopted before the federal legalization of same-sex marriage, which means that one spouse is the legal parent of the child even though both raised it. Similarly, LGBT couples who opted for artificial insemination can experience the same issue. If only one parent was ever considered the legal parent, it’s very unlikely that the court will grant custody, visitation or any parental rights to the non-biological, non-adopting spouse.

These kinds of legal battles can be devastating for the spouse who raised the child as their own but was never legally recognized as their parent. Creating a parenting plan with your spouse before divorce can avoid this kind of dispute in the future. If you anticipate a legal battle for custody of your child, it’s important to hire a family lawyer experienced in LGBTQ divorce to fight for your rights as a parent. 


Alimony is yet another aspect of the divorce process that can be much different for LGBTQ couples. If the divorce ends up in court, divorcing couples must rely heavily on the judge’s discretion based on their specific case. The judge may weigh several factors to determine whether alimony should be paid to the lower-earning spouse, including:

  • The length of the marriage
  • Both spouses’ income
  • Custody of children

Settling Out of Court

A simple way to avoid unfair asset divisions and contentious legal battles is to settle your divorce outside of court through mediation. In mediation, couples can divide their property equitably, make the best custody decision for their children and resolve any conflicts with the help of their legal teams. Mediation is the go-to choice for most LGBTQ couples specifically because it prevents the serious financial and emotional conflict that comes with going to court against one another and keeps the decision in the hands of the couple rather than with the judge. 

If you’re seeking to file for divorce in Texas, contact the divorce lawyers at Bineham & Gillen. Our attorneys have experience with LGBTQ divorce and understand the struggles faced by LGBTQ couples throughout the divorce process. Contact us today for a consultation.