Are Same-Sex Divorces Handled the Same As Heterosexual Divorces?

With tides having turned in the struggle for LGBTQ+ marriage rights over the last decade, often questions about whether there are any differences when it comes to marriage for same-sex couples arise. Are these marriages the same as heterosexual marriages? And what about the divorces?

How is same-sex divorce different from a divorce between a heterosexual couple?

Because same-sex marriage is legal in Colorado there is virtually no difference between same-sex divorce and heterosexual divorce. This means that you can either be a petitioner and respondent or petitioner and co-petitioner. After that, the divorce will proceed as a heterosexual divorce would.

How will child support and custody factor into a same-sex divorce?

Because many same-sex couples have children, this is a question that is often at the forefront of the couples’ minds. However, the court will proceed as they would for any divorce. Regardless of whether or not the child is biologically yours, or adopted by one or both parents, the court will determine parenting time based on the best interests of the child. If both parents are adoptive parents, they are both treated as if they are legal parents to the children. This is the same if one party is the biological parent and one party is an adoptive parent.

Additionally, child support will be calculated using the same calculation as in any other child support situation. If you’re curious what child support might look like in your particular set of circumstances, check out our calculator.

If you are interested in common law marriage divorce or divorce for LGBTQIA+ couples, you can learn more here. You can also find more materials discussing same-sex marriage on our website.

CO Supreme Court Recognizes Same-Gendered Common Law Marriage

On Monday, January 5th 2021 the Colorado Supreme Court ruled that same-gendered couples that were in common-law marriages before the 2015 Obergefell v. Hodges legalization of same-sex marriage are now seen as valid in the eyes of Colorado State law.


Common-Law Marriages in Colorado


Colorado is unique in that it is one of eight states that recognize common-law marriage in the United States. A common-law marriage is a partnership between two people where they are not legally bound by a marriage license, but they hold themselves out as married. A couple may hold themselves out as married if they have combined bank accounts or assets, are recognized by family and close friends as married, live together, file taxes jointly, have children together, share insurance, etc.


Same-Sex Common Law Marriages Before 2015 Now Recognized


This recognition of same-sex common-law marriages that began prior to the 2015 Supreme Court decision is an exciting ruling, as it applies the law fairly for all couples who have ever been in a common-law marriage in Colorado, regardless of their sexual orientation.


This means if you and your spouse are in a same-sex relationship and held yourself out as married without a license before the 2015 Supreme Court ruling, you may be considered common-law married if you meet the criteria for common-law marriage. It also means you can now go through the divorce process if you are separating so you can fairly resolve the dissolution of your marriage through legal means.


If you and your partner are separating and have been in a same-sex common law marriage since before 2015, contact one of our Divorce Matters attorneys today to help. We can help answer your questions about this groundbreaking ruling and how it may affect your case.


You can learn more about common-law marriage here.

Same-Sex Marriage One Year Later, And Questions Still Remain

It has been a little over one year since the historic Obergefell v. Hodges Supreme Court ruling that struck down same-sex marriage bans across the country. That day came with much celebration and rejoicing, and over the course of the last year, many same-sex couples were finally able to make their love official. However, in the exuberance and fanfare, many couples may have jumped the gun, signing their marriage licenses blindly and without considering the potential ramifications if the relationship falls through. Specifically, what counts as marital property for couples who were already in a long-term relationship?

Does Property Acquired During a Long-Term Relationship Count as Marital Property?

Many same-sex couples who celebrated Obergefell by getting married had already lived together and been committed to one another for a long time. This means that these couples probably acquired quite a bit of property together, property that will need to be considered if the couple decides to divorce.

Marital property is property acquired during the marriage ”“ simple enough to understand. In divorce, marital property is divided equitably (not necessarily equally) between the spouses. But when it comes to same-sex couples who have only been legally married for a year (or a little more, since Colorado legalized it in 2014), does property acquired before marriage became legal count as marital property? Divorce law says no”¦but what about common law marriage?

Colorado is one of the few states where common law marriage exists. Common law marriage means that a couple is legally married if they both consent to be married and hold themselves out to the public as married. Even before marriage was legalized for same-sex couples, many couples swore their vows to one another in private ceremonies or even simply introduced their significant other in public as a husband or wife. Would these count as common law same-sex marriages, now that same-sex marriage is legal, and thus subject property acquired during that time to equitable division? It is a very fuzzy question and the answer has not really been established, though we imagine there will be cases coming through the courts in the years to come to determine the answer.

Does the SCOTUS Same-Sex Marriage Ruling Affect Domestic Partnerships?

If you’ve been on Facebook, you’ve probably seen a cascade of rainbow-colored profile pictures celebrating the Supreme Court ruling on the case of Obergefell v. Hodges, the case that overturned same-sex marriage bans in four states and effectively legalized marriage for same-sex couples across the United States. Colorado has already had same-sex marriage on the law books for some time, but some couples have chosen to forego marriage in favor of domestic partnerships. Domestic partnerships are similar to marriage and many employers already extend benefits such as health insurance to couples in domestic partnerships.

Because Obergefell’s ruling does not mention domestic partnerships, you might be wondering how yours will be affected by the outcome on the case.

How the Supreme Court Ruling Affects Domestic Partnerships

Employer-provided benefits may change as a result of the ruling. Some employers may discontinue same-sex domestic partner benefits. You should speak with your employer about possible benefit changes and whether you need to take steps to ensure that your partner is covered. This has happened in the past with employers like Verizon and IBM, where domestic partner benefits were rescinded and employees were given a grace period to get married. Your taxes may also be affected by the change.

Our family law attorneys will be keeping an eye on the effects of the Obergefell ruling and will keep this blog updated as more news comes out that may affect your family.

Divorce Matters ”“ Denver Family Law Attorneys

Colorado Just Banned Same-Sex Marriage, What Rights Do We Have Now?

Cultural attitudes toward same-gender marriage and civil unions are shifting dramatically, as states move to recognize””in some fashion””the rights of same-gender couples. New York’s recent passage of a same-gender marriage law made it the sixth and largest state to legalize same-gender marriage in the country.

But same-gender marriage laws are state-based, which brings to the table a myriad of legal issues when a same-gender couple legally married in one state relocates to another state without legal recognition of domestic arrangements.

So what does it mean for you if you were married in Massachusetts or New York? Will you have the same rights if you end up living in a state that does not recognize same-gender unions, as a marriage, civil union, or domestic partnership?

Not in Colorado. As of today, Colorado has a state constitutional amendment banning same-gender marriage, and it also does not recognize civil unions or domestic partnerships between same-gender couples. So a marriage in another state that recognizes same-gender marriages will not be recognized in Colorado.

That does not mean that same-gender couples are without rights in our state. There are several key legal rights for same-gender couples in Colorado.

Designated Beneficiary

While your same-gender relationship may not be recognized as a legal union in Colorado, you do have rights to property and assets. The designated beneficiary agreement enables you to file a form with your county clerk that legally makes your significant other the recipient of your benefits and””in case you don’t have a will or testament””your assets upon your death. While not as all-encompassing as other estate planning measures, it is both legally recognized and cost-effective.

You can pick up a copy of the designated beneficiary agreement form at many family law practices, including Divorce Matters, or download the form from your city or county website. You can also find more information at

“Prenuptial” Agreements

The term “prenuptial” is technically inaccurate because the marriage is not legally recognized, but the intent and purpose of this document is the same. If you, as a same-gender couple, are planning to enter a long-term relationship, you may want to speak with an attorney to explore asset protection through a variation of the prenuptial agreement that applies to same-gender couples.

As with all prenuptial agreements, you will delineate exactly what assets will be joint or kept separate throughout the life of your relationship, and you will legally define how you will divide assets and debts should the relationship end. Although you may not be recognized as married in the eyes of the law, the legal document will still be binding.

Same-Gender Second-Parent Adoptions

The third right same-gender couples have is not related to marriage or divorce but rather starting a family. Some states do not allow same-gender couples to adopt children together, which leaves same-gender parents open to a variety of legal loopholes””from challenging family members to lack of authority with their children’s caregivers or schools. It may even impede a same-gender parent’s right to visit his or her child in the hospital.

In Colorado, same-gender couples are allowed to adopt children, regardless of gender orientation or biological connection. Colorado same-gender adoption laws recognize both parents as having full and legal custody.


According to the last census, there were 16,114 same-gender couples living in the state of Colorado, and 3,690 of these couples were raising children together. While same-gender marriage itself is not recognized in Colorado, there are other rights available that protect the interests of same-gender couples. As we watch the environment regarding the same-gender marriage change around us””and as more and more states follow New York’s lead””we will likely see more changes to the law and legal protections for same-gender couples in the future.