How marriage, divorce, parentage and adoption law applies to same-sex couples after Obergefell, and the places where the rules still differ in practice.
Looking for a lawyer rather than a definition? Skip to the state-by-state list of Same Sex law firms.
Since the Supreme Court held in Obergefell v. Hodges that the Constitution requires every state to license and recognize marriages between two people of the same sex, a same-sex married couple has the same rights and duties as any other married couple in every state: the same divorce law, the same rules for dividing marital property and awarding spousal support, the same inheritance and tax treatment, and the same federal benefits, since United States v. Windsor had already struck down the federal definition of marriage as opposite-sex only. Congress later enacted the Respect for Marriage Act, which repealed the Defense of Marriage Act and requires every state and the federal government to recognize a marriage that was valid where it was performed.
The differences that remain are mostly about children and about relationships formed before 2015. Parentage law in many states was written around biology, so the spouse who did not give birth may need a court order to be recognized as a legal parent everywhere, even where the state's marital presumption applies on paper; a confirmatory or second-parent adoption, or a parentage judgment, produces an order that every state must honor under the Constitution's Full Faith and Credit Clause (V.L. v. E.L.). Children conceived through assisted reproduction or born to a surrogate raise their own parentage questions, which states answer differently, and some states now have statutes modeled on the Uniform Parentage Act (2017) that treat intended parents equally regardless of sex. Couples who had a civil union or domestic partnership before marriage became available may hold two legal statuses that both have to be dissolved on separation, and dates matter: how long the marriage lasted affects property division and support, and some courts have counted the pre-marriage relationship period while others have not.
Adoption and foster-care agencies may not refuse same-sex couples on the basis of their marriage under the law of most states, but the interaction between anti-discrimination rules and religious exemptions for agencies is still being litigated, and the Supreme Court has decided one such case on narrow grounds (Fulton v. City of Philadelphia). For divorce itself the process is the same as for any couple: see divorce grounds, parenting plans and child support.
See a family lawyer before a separation if you and your spouse have a child and only one of you is the biological or adoptive parent, because a parentage order or adoption is far easier to obtain while you agree than after a dispute begins. Ask the lawyer how the state treats a pre-marriage civil union or domestic partnership and the years you lived together before marriage, since both can change the property and support outcome. Couples using a surrogate or a known donor should have agreements and parentage orders in place before birth. A lawyer who regularly represents LGBTQ clients will know which local judges and agencies handle these matters routinely.
Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.
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Other entries in the same area of law, each written from the same primary sources.