A third worry comes up constantly too: whether your marriage is recognized if you married in one state and now live in, or are filing in, another. That one's already settled nationwide, not a real difference, just a common fear. More on why below.

Same-sex marriage has been legal nationwide since the U.S. Supreme Court's 2015 decision in "Obergefell v. Hodges". The ruling struck down state bans on same-sex marriage and required every state to recognize marriages performed elsewhere.

Massachusetts was the first state to allow same-sex marriage, back in 2003. Several of Marble's active states, including California, New York, Maryland, and Illinois, recognized it years before Obergefell made it the law everywhere. That timing gap is where most of the real differences come from. Understand it before you file.

Here's a scenario that comes up often: a couple has been together for 12 years, but their state didn't allow same-sex marriage until year 10. They married as soon as they legally could. But now, two years later, they're divorcing. Is their marriage treated as 12 years long, or 2?

This isn't a hypothetical. As Justia's LGBTQ+ Legal Resources Center puts it, figuring out when a marriage "officially started" is a genuinely unresolved question in much of the country. The specific issue: whether that date can be backdated to include the years together before same-sex marriage was legally recognized.

If you were together well before your state's recognition date, this timing gap directly affects your case.

Colorado has already addressed this question directly. In a 2021 case, In re Marriage of LaFleur & Pyfer, the Colorado Supreme Court ruled on this question. Courts may recognize an earlier "common-law" marriage date for a same-sex couple.

In that case, the couple had held a commitment ceremony in November 2003, about 11 years before Colorado recognized same-sex marriage in 2014. The court reasoned that an unconstitutional marriage ban should be treated as if it never existed. It sent the case back so the property and support award could be reconsidered using the earlier date.

Colorado isn't alone in reaching this conclusion. The court's opinion pointed to similar rulings from courts in Texas, Montana, Washington D.C., and Pennsylvania that also treated Obergefell as applying retroactively.

Among Marble's 10 active states, Colorado's Supreme Court is still the only one to rule squarely on backdating a common-law marriage date this way. Texas has seen a related development. In 2024, a Texas appeals court recognized a same-sex couple's 2012 out-of-state marriage as valid in Texas despite predating Obergefell. The Texas Supreme Court declined further review.

That involved a different situation: an already-performed marriage from another state, not a backdated common-law marriage. The U.S. Supreme Court declined to review that ruling in January 2025, so the Texas appellate decision stands, though it isn't a ruling on the backdating question itself. In Florida, New York, Georgia, Maryland, Arizona, and Michigan, courts haven't yet ruled directly on backdating a marriage date the way Colorado's did.

If your relationship predates your state's recognition of same-sex marriage, don't assume either answer. An attorney can tell you whether courts in your state have addressed this. They can also help you document the earlier relationship period if it matters to your case. Joint bank accounts, a shared lease, a commitment ceremony, or a registered domestic partnership can all serve as evidence.

The basic rules are the same as any divorce in your state. The nuance is entirely about the marriage-date question above.

If your state is a "community property" state (California, Texas, and Arizona, among Marble's active states), property acquired during the marriage is generally divided equally. In "equitable distribution" states (Florida, New York, Georgia, Colorado, Maryland, Michigan, and Illinois), property is divided fairly, which doesn't always mean equally. Either way, the marriage-date question above determines what counts as "during the marriage" in the first place. That's why it matters so much for couples who were together long before they could marry.

This is one of the most common surprises in LGBTQ+ divorces involving kids. If only one of you is biologically related to your child, or only one of you adopted, custody protection for the other parent isn't automatic. Most states have a "marital presumption of parentage," a rule that automatically treats a child born during the marriage as the legal child of both spouses.

Whether that presumption reliably covers a non-biological, non-adoptive spouse in a same-sex marriage depends heavily on your state. This area of law is moving quickly, too.

The safest move, in any state, is to complete a formal second-parent adoption (also called a "confirmatory" or "step-parent" adoption). Do this even if you believe the presumption already covers you. A presumption is a legal assumption that can be challenged in court. An adoption is a court judgment, which carries stronger protection if you move between states.

If this applies to you, a family law attorney can help you understand exactly where your parentage stands under your state's current law right now.

Most of the divorce process is identical regardless of who you're married to. You'll file in the same courts and meet the same residency and waiting-period requirements as any other couple in your state. You'll also have access to the same mediation and settlement options. Custody decisions use the same "best interests of the child" standard everywhere.

If you don't have children, and you and your spouse married after your state recognized same-sex marriage, your divorce will likely look just like any other. That includes how you'll know it's officially final. The differences above apply specifically when your relationship predates legal recognition, or when parentage was never formally secured.

The same three questions (property division, marriage timing, and parentage) play out differently depending on where you live:

Every divorce is different, but LGBTQ+ couples do face a few extra legal issues. These are mostly tied to how long you were together before you could marry, and whether both parents' legal status is secured. None of these questions are impossible to navigate; they just take an attorney who knows to ask about them. An attorney with Marble can walk through your specific timeline and tell you exactly where you stand.

Disclaimer: Family law varies by state and changes over time. This information is for educational purposes only and is not legal advice. Consult a licensed attorney for guidance specific to your situation.