Same-Sex Marriage and Family Law

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.

What it means

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 Congress later enacted the Respect for Marriage Act, which repealed the Defense of Marriage Act and requires every state and the federal government to recognize a marriage that was valid where it was performed.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.

Where this comes from

When people hire a lawyer for this

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.

Find Same Sex law firms in your state

Choose your state to see Same Sex law firms in the city where we list the most; your city may be under “other cities”, A to Z. A state marked “Family Law” has no Same Sex listing yet and opens the broader page.

• Alabama (Birmingham)
  +1 other city

  • Montgomery
• Alaska (Anchorage, Family Law)
• Arizona (Chandler)
  +6 other cities

  • Gilbert
  • Glendale
  • Mesa
  • Phoenix
  • Scottsdale
  • Tucson
• Arkansas (Little Rock)
• California (Chula Vista)
  +19 other cities

  • Anaheim
  • Bakersfield
  • Fontana
  • Fremont
  • Irvine
  • Los Angeles
  • Oakland
  • Oxnard
  • Riverside
  • San Bernardino
  • San Diego
  • Santa Ana
  • and 7 more with fewer listed firms
• Colorado (Aurora)
  +2 other cities

  • Colorado Springs
  • Denver
• Connecticut (Bridgeport)
• Delaware (Wilmington, Family Law)
• District of Columbia (Washington)
• Florida (Hialeah)
  +5 other cities

  • Jacksonville
  • Miami
  • Orlando
  • St Petersburg
  • Tampa
• Georgia (Atlanta)
• Hawaii (Honolulu, Family Law)
• Idaho (Boise, Family Law)
• Illinois (Chicago)
• Indiana (Fort Wayne)
  +1 other city

  • Indianapolis
• Iowa (Des Moines)
• Kansas (Wichita)
• Kentucky (Lexington)
  +1 other city

  • Louisville
• Louisiana (Baton Rouge)
  +1 other city

  • New Orleans
• Maine (Portland)
• Maryland (Baltimore)
• Massachusetts (Boston)
• Michigan (Detroit)
• Minnesota (Minneapolis)
  +1 other city

  • Saint Paul
• Mississippi (Jackson)
• Missouri (St. Louis)
  +1 other city

  • Kansas City
• Montana (Billings, Family Law)
• Nebraska (Lincoln)
  +1 other city

  • Omaha
• Nevada (Henderson)
  +2 other cities

  • Las Vegas
  • North Las Vegas
• New Hampshire (Manchester)
• New Jersey (Newark)
  +1 other city

  • Jersey City
• New Mexico (Albuquerque)
• New York (New York City)
  +2 other cities

  • Buffalo
  • Rochester
• North Carolina (Charlotte)
  +5 other cities

  • Durham
  • Fayetteville
  • Greensboro
  • Raleigh
  • Winston-Salem
• North Dakota (Fargo)
• Ohio (Cincinnati)
  +3 other cities

  • Cleveland
  • Columbus
  • Toledo
• Oklahoma (Oklahoma City)
  +1 other city

  • Tulsa
• Oregon (Portland)
• Pennsylvania (Philadelphia)
  +1 other city

  • Pittsburgh
• Rhode Island (Providence)
• South Carolina (Columbia)
• South Dakota (Sioux Falls, Family Law)
• Tennessee (Nashville)
  +1 other city

  • Memphis
• Texas (Austin)
  +12 other cities

  • Arlington
  • Corpus Christi
  • Dallas
  • El Paso
  • Fort Worth
  • Garland
  • Houston
  • Irving
  • Laredo
  • Lubbock
  • Plano
  • San Antonio
• Utah (Salt Lake City)
• Vermont (Burlington)
• Virginia (Chesapeake)
  +3 other cities

  • Norfolk
  • Richmond
  • Virginia Beach
• Washington (Seattle)
  +1 other city

  • Tacoma
• West Virginia (Charleston)
• Wisconsin (Madison)
  +1 other city

  • Milwaukee
• Wyoming (Cheyenne, Family Law)

Related terms

Other entries in the same area of law, each written from the same primary sources.

• AdoptionThe court order that makes a child legally the son or daughter of someone other than the birth parents - the kinds of adoption, whose consent is required, how the birth parents' rights end, the home study and the hearing, and what the order changes about inheritance, records and the child's name.
• Annulment (Void and Voidable Marriage)A court judgment declaring that a marriage was never valid, as distinct from a divorce that ends a valid one - the difference between a void and a voidable marriage, the grounds each state recognizes, who may bring the case, and what an annulment does to property, support and children.
• Child SupportMoney one parent pays the other toward a child's living costs, set in most cases by a state formula rather than by negotiation.
• Child Support EnforcementHow unpaid child support is collected - income withholding, tax refund intercepts, license and passport sanctions, liens and contempt - and the free help available from state child support agencies.
• Cohabitation Agreement (Unmarried Couples)Why unmarried partners who live together have few of the property and support rights spouses have, what a written cohabitation agreement can cover, and what courts do without one.
• Collaborative Divorce (Collaborative Law)A way to settle a divorce out of court in which both spouses and their lawyers agree in writing to negotiate, and the lawyers must withdraw if the case goes to court.
• Common-Law MarriageA marriage formed without a license or ceremony by living together as spouses and holding yourselves out as married - which states still allow it, what has to be proved, why every state recognizes one validly formed elsewhere, and what it means for property, support and inheritance when the relationship ends.
• Dividing Retirement Accounts in Divorce (QDRO)How pensions, 401(k) plans and IRAs are divided at divorce without tax or penalty - what a qualified domestic relations order is and why a divorce decree alone is not enough, the difference between a defined-benefit and a defined-contribution split, the plans that need a different order, and the mistakes that cost a former spouse the share the decree awarded.
• Divorce MediationA process in which a neutral mediator helps separating spouses negotiate their own agreement on property, support and parenting, instead of having a judge decide for them.
• Establishing PaternityThe legal step that makes a man a child's father in law - and signing the hospital form is one of two routes, not a formality.
• Grandparent and Third-Party VisitationWhen a court can order that a child spend time with a grandparent, step-parent or other non-parent over a parent's objection - the constitutional limit set by the Supreme Court, the circumstances in which state statutes allow a petition, the special weight a fit parent's decision receives, and what a petitioner must prove.
• Grounds for DivorceThe legal basis a divorce is granted on - and in every state today at least one basis requires proving no wrongdoing by anyone.
• Guardian ad Litem and Custody EvaluatorThe two neutrals a court most often appoints in a contested custody case - what a guardian ad litem does and does not do, how it differs from a child's attorney and from a custody evaluator, who pays, what they may see, and how their reports are used at trial.
• Guardianship of a MinorA court order giving an adult who is not the parent legal authority over a child's care, or over the child's property, without ending the parents' rights - how it differs from custody and adoption, who can be appointed, what the parents keep, and how it ends.
• Legal and Physical CustodyTwo different things the word "custody" covers: who makes major decisions for a child, and where the child lives.
• Legal SeparationA court status in which spouses live apart with binding orders on support, property and children, while remaining married.
• Marital Property DivisionHow a court splits what a couple owns - and "equitable" means fair in that state's judgment, which is not the same as half.
• Military DivorceA divorce in which one spouse is a service member, which adds federal rules on where the case can be filed, how military retired pay is divided, and what the civilian spouse keeps after the divorce.
• Modifying a Custody or Support OrderChanging an existing family court order - which usually requires proving something has changed, and never happens by the parents' agreement alone.
• Parenting Plan and VisitationThe written schedule and decision-making rules for a child after separation - and the document courts increasingly require rather than invite.
• Postnuptial AgreementA contract between spouses, signed during the marriage, that decides how property and support would be handled on divorce or death, and why courts scrutinize it more closely than a prenup.
• Prenuptial AgreementA contract made before marriage about property and support - enforceable in every state, and set aside more often than most people expect.
• Protective Order (Restraining Order)A court order telling one person to stop contacting or coming near another - enforceable by police, and valid across state lines.
• Relocating With a ChildMoving a child away from the other parent - the family law dispute most likely to require the court's permission before the move, not after.
• Spousal Support (Alimony)Payments from one former spouse to the other - discretionary in most states, and taxed differently for instruments made after 2018.
• Termination of Parental RightsThe court order that permanently ends the legal relationship between a parent and child - the grounds a state must prove, the heightened standard of proof and right to counsel, the difference between voluntary relinquishment and an involuntary petition, and what the order does and does not end.

« All glossary terms