Frederick Hertz asks in the Huffington Post Blog Is Gay Divorce Any Different Than Straight Divorce?  He points to three areas where gay breakups are different:  historical legacy, legal complexities, and cultural dimensions.  Historically speaking, same sex couples could not marry until recently in any state.  So, most same sex couples in long-term relationships have spent a good amount of time living outside of traditional marital law.  This means that a same sex couple’s breakup may have some issues that straddle the lines between nonmarital relationships and traditional marital law.  I think Hertz, an attorney in California where gay marriage is recognized, means a situation where maybe the couple gets married in California but owns property in a state that does not recognize their marriage, creating difficulties in dividing assets and such.

The second place that same sex breakups differ from straight divorce addresses the inherent legal complexities in same sex relationships.

For some same-sex partners, the inability to legally marry relegates their break-up to the murky world of non-marital law, which often involves complex theories of equitable partition, implied contracts, and partnership law. It can also create serious problems around the parentage and custody of kids. See for more about those issues. And, even for those whose lives are covered by marital law (because they live in a recognition state and entered into a formal registration or marriage), the lack of federal recognition can create serious confusion or even blatant discrimination. There is no tax recognition of the spousal relationship, and so transfers of assets can trigger capital gains, income, or gift tax liabilities. The ERISA rules preclude the assignment of a pension or retirement benefit, which also can lead to additional taxation and enforcement problems for divorcing couples. Because of the legal complexities, fewer divorce lawyers know how to handle same-sex dissolutions, and so even finding a qualified lawyer can be a challenge.


The third difference involves the cultural differences between gay people in general and straight people.  For example, the traditional gender roles that apply (globally speaking) to straight folks may not apply to gay couples.  And, gay people may have resistence to involvement with the judicial system.

My opinion is that every couple, gay or straight, has their own dynamic and set of "issues".  Putting any couple "in a box" of stereotypes is impossible.  Breakups between same sex couples are more complex because, at least in the context of Texas divorce law, there’s very little law that directly defines their relationship or breakup.  The courts have ruled that we don’t have gay divorce in Texas. The most common sensical approach for a gay couple is to solidify their relationship in the beginning with a domestic partner agreement that defines the rules as they apply to that couple and contractually determines how they will break up.  There is also a lot of litigation right now regarding nonparent custody in Texas — including same sex custody suits.  Although the boundaries of when a nonparent may sue for custody of a child that is not biologically or adoptively related to them remain murky, there are an abundance of cases exploring the issues.

Lambda Legal has a great chart that summarizes the current state of affairs for same-sex couples. Check it out at: