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What makes same-sex divorce more challenging?

On Behalf of | Nov 23, 2023 | Divorce

Marriages involve much work, but sometimes, when the union is no longer healthy for either spouse, divorce becomes the only option. Terminating a marriage is universally difficult, but for same-sex couples, the application of standard divorce laws can lead to complications. Knowing the major obstacles they might face during a divorce may better prepare same-sex couples who are considering severing their marital ties.

1.      Marriage dates may not reflect the entire relationship

The length of a marriage plays a crucial role in many divorce proceedings. It’s one of the factors that the court considers when making decisions on alimony, child custody and property division. However, same-sex couples often encounter a unique challenge in this regard.

Despite sharing a life together for many years, Hawaii family courts do not recognize common-law marriage. Although many couples may not have a choice since Hawaii only authorized same-sex marriage in 2013, this could, nevertheless, pose issues in the divorce.

Consider a situation where a couple has been cohabitating for a decade but has a marital status that spans only five years. They may have difficulty distinguishing marital property from separate property if they’ve acquired assets before marriage. The judge must decide whether to evaluate the relationship based on 15 years or just five years.

2.      Difficulty establishing parental rights

Complications may arise when children are involved, mainly when only one parent is a biological parent. A non-biological parent who has not legally adopted the child may face challenges establishing parental rights, let alone securing custody.

In 2018, Hawaii upheld the parental rights of same-sex parents for a child born during the marriage. However, establishing parental rights in a same-sex divorce remains a contentious issue. Obtaining strategic yet empathetic legal counsel may be necessary to navigate such a difficult situation.


Same-sex divorce presents obstacles that are far beyond the usual complications of ending a marriage. Armed with this knowledge, individuals considering divorce may benefit from working with a lawyer who recognizes the struggles this journey may entail. With legal guidance, they can be better prepared to face these obstacles and potentially improve their outcome.

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