Since the Supreme Court's landmark decision in Obergefell v. Hodges in 2015, same-sex couples across the United States have gained the right to marry. This historic ruling also granted same-sex couples in Utah the right to divorce under the same legal framework that applies to opposite-sex marriages. While Utah courts handle LGBT divorce cases using the same family law standards, same-sex couples often face unique challenges during the divorce process that require careful attention and experienced legal guidance.
How Utah Law Handles Same-Sex Divorce
Same-sex marriages in Utah are treated identically to opposite-sex marriages under Utah law. This means same-sex couples have access to the same divorce procedures, property division rules, and custody considerations as any other married couple. Utah courts don't apply different standards based on sexual orientation or gender identity when handling divorce cases.
However, the path to marriage equality in Utah was complex. Before the Supreme Court ruling, Utah had a voter-approved ban on same-sex marriage. This ban was struck down by a U.S. District Court judge in 2013, and the legal battles continued through various appeals until the Supreme Court made marriage equality the law nationwide.
Today, same-sex couples who wish to end their marriage can file for divorce in Utah's family courts just like any other married couple. The same requirements, procedures, and legal standards apply regardless of the couple's sexual orientation.
Filing for Divorce as an LGBT Couple
When same-sex couples decide to divorce in Utah, they must follow the standard divorce filing process. One spouse files a petition for divorce with the district court in the county where either spouse lives. Utah requires that at least one spouse has lived in the state for at least three months before filing for divorce.
Like all divorce cases in Utah, same-sex divorce can be either contested or uncontested. An uncontested divorce happens when both spouses agree on all major issues, including property division, spousal support, and, if applicable, child custody and child support. Contested divorces involve disputes that the court must resolve.
The legal process begins when one spouse serves the divorce papers on the other. The responding spouse then has a specific time period to file an answer. From there, the case proceeds through discovery, negotiations, and potentially trial if the spouses cannot reach agreements on key issues.
Property Division in Same-Sex Divorce Cases
Utah follows the principle of equitable distribution when dividing marital property in divorce. This means the court divides assets and debts fairly between spouses, though not necessarily equally. The same property division rules apply to same-sex couples as to opposite-sex couples.
However, same-sex couples sometimes face unique challenges with division of assets that opposite-sex couples typically don't encounter. Many same-sex couples lived together for extended periods before they could legally marry. During those years of cohabitation, they may have acquired significant property together, opened joint accounts, or commingled their finances.
Under Utah law, only property acquired during the legal marriage counts as marital property subject to division. Property acquired before the marriage is generally considered separate property belonging to the individual who owned it. This can create unfairness for same-sex couples whose relationships existed for years before marriage became legal.
For example, a same-sex couple might have lived together for ten years before they could legally marry in Utah. They purchased a home together, opened retirement accounts, and built a life as a committed couple. If they divorce after being legally married for only three years, technically only assets acquired during those three years count as marital property. The house they bought together eight years before marriage might be considered separate property.
Some Utah courts recognize this inequity and may consider the length of the actual relationship when making property division decisions, even if the legal marriage was shorter. However, outcomes can vary depending on the judge and specific circumstances.
Unique Property Division Challenges
Several specific issues frequently arise in same-sex divorce property division that require careful legal analysis.
Property Challenge | Why It’s Important | Potential Solution |
Pre-marriage cohabitation assets | Property acquired before legal marriage may be deemed separate property, even if both partners contributed | Document all contributions; consider domestic partnership agreements; ask court to consider full relationship length |
Commingled finances | Joint accounts and shared expenses during pre-marriage years blur lines between separate and marital property | Maintain detailed financial records; trace contributions; work with forensic accountants if needed |
Shared home ownership | House purchased before marriage may not be divided equitably despite both partners contributing to mortgage and improvements | Keep records of all payments and improvements; consider legal agreements documenting shared ownership intentions |
Retirement accounts | Benefits accumulated before marriage typically remain separate property | Consider the full relationship when negotiating settlements; may need expert valuation of pre- and post-marriage portions |
Business interests | Business built together before legal marriage may not be considered marital property | Partnership agreements; documentation of both partners' contributions; business valuations |
Commingled Assets
When same-sex couples lived together before marriage, they often commingled separate property with what later became marital property. For instance, one partner might have owned a home before marriage, but during the relationship, both partners paid the mortgage, made improvements, and treated it as their shared residence.
Determining which portion of such commingled assets is separate property versus marital property can become extremely complex. Courts must trace funds and contributions to determine the fair division of these assets.
Domestic Partnership Agreements
Some same-sex couples created domestic partnership agreements before they could legally marry. These agreements outlined property rights and financial arrangements for the relationship. When these couples later married legally, questions arose about how their pre-existing agreements interact with marriage and divorce laws.
A well-drafted domestic partnership agreement might function similarly to a prenuptial agreement, providing clear guidance for property division in divorce. However, not all such agreements were created with legal marriage in mind, potentially creating ambiguities that complicate divorce proceedings.
Retirement Accounts and Benefits
Same-sex couples who worked for employers during years when they couldn't legally marry may have missed opportunities to designate partners as beneficiaries, participate in spousal pension benefits, or make decisions that married couples routinely made.
When dividing retirement accounts in same-sex divorce, courts must carefully evaluate what benefits accumulated during the legal marriage versus what existed before marriage became available.
Child Custody and Support in Same-Sex Divorce
Child custody issues in same-sex divorce can present some of the most challenging legal matters facing LGBT couples. Utah law determines custody based on the child's best interests, without regard to parents' sexual orientation. However, establishing who qualifies as a legal parent can create significant complications.
Parentage Challenges
In Utah, an adult only has parental rights if they are the biological or legal parent of a child. For opposite-sex married couples, both spouses are typically the biological parents of children born during the marriage, or they both legally adopted children together.
For same-sex couples, the situation is often more complex. Typically, only one spouse has a biological connection to children born during the relationship. The other spouse must establish legal parentage through adoption or other legal processes to have parental rights.
If a same-sex couple divorces and one spouse never legally adopted the children, that spouse may have no legal right to seek custody or even visitation. The Utah Supreme Court addressed this issue in a 2007 case, holding that only biological or legal parents have custody rights in same-sex relationship dissolutions.
This creates devastating potential outcomes where a spouse who helped raise children from birth, formed deep parental bonds, and served as a primary caretaker might lose all legal connection to those children simply because they never completed adoption proceedings.
Establishing Legal Parentage
Same-sex couples can avoid these heartbreaking scenarios by establishing legal parentage for both parents before relationship problems arise. Stepparent adoption is the most common method for a non-biological parent to establish legal parental rights.
In stepparent adoption, the non-biological parent formally adopts their spouse's biological children, creating a full legal parent-child relationship. Once this adoption is complete, both parents have equal rights to seek custody in a divorce.
However, stepparent adoption requires consent from any other legal parent. If a child was conceived using a known sperm donor who has parental rights, or if the child has another biological parent who hasn't terminated their parental rights, stepparent adoption may not be possible.
Some same-sex couples delay adoption or never pursue it, sometimes due to financial constraints, sometimes because they don't understand the legal implications, and sometimes because other legal parents won't consent. When these couples divorce without both partners having established legal parentage, the non-legal parent faces losing their relationship with children they helped raise.
Custody Determinations
When both parents in a same-sex couple have established legal parental rights, custody determinations follow the same best interest standard applied in all Utah custody cases. Courts consider factors including each parent's ability to care for the child, the child's relationship with each parent, stability of each home environment, and each parent's ability to cooperate in co-parenting.
Utah distinguishes between legal custody (decision-making authority about education, healthcare, and religion) and physical custody (where the child physically resides). Courts presume that joint legal custody serves children's best interests, though physical custody arrangements vary based on each family's circumstances.
Child Support Obligations
Child support in same-sex divorce follows Utah's standard child support guidelines based on both parents' incomes and the amount of time children spend with each parent. These calculations work the same way for same-sex couples as for opposite-sex couples.
However, if only one parent has legal parental rights, the non-legal parent typically has no child support obligation because they're not legally recognized as a parent. This can create unfairness when a non-legal parent helped support children financially throughout the relationship but faces no ongoing obligation after separation.
Spousal Support in LGBT Divorce
Utah courts can award spousal support (also called alimony) in same-sex divorce cases using the same standards applied to opposite-sex divorces. The court considers factors like the length of the marriage, each spouse's earning capacity, the standard of living during marriage, and each spouse's financial needs and resources.
However, the length of marriage calculation can disadvantage same-sex couples whose relationships predated legal marriage. If a couple was together for fifteen years but could only legally marry for the final three years before divorcing, courts typically consider only the three-year legal marriage when determining spousal support.
Some same-sex couples in long-term relationships made career sacrifices, supported partners through education, or stayed home with children during years when they couldn't legally marry. These contributions may not receive the same consideration in spousal support determinations as they would for opposite-sex couples who were legally married during those years.
Progressive Utah courts sometimes consider the full relationship length when fairness demands it, but outcomes depend heavily on individual judges and case circumstances. Working with a family law attorney experienced in same-sex divorce helps ensure courts fully consider your contributions throughout the relationship.
Finding the Right Legal Help
Given the unique challenges in same-sex divorce, choosing the right legal representation makes a significant difference in case outcomes. LGBT couples should seek a law firm with specific experience handling same-sex divorce and custody issues in Utah.
An experienced family law attorney understands the nuanced legal matters affecting same-sex couples, including parentage establishment, property division for pre-marriage cohabitation, and how Utah courts interpret laws in LGBT contexts. They can identify potential issues early and develop strategies to protect your rights.
When meeting with potential attorneys, ask about their experience with same-sex divorce cases, their familiarity with Utah courts in Salt Lake City or your local area, and their approach to complex custody issues involving non-biological parents. A knowledgeable attorney should be able to explain how Utah law applies to your specific situation and outline realistic expectations for your case.
Moving Forward After Same-Sex Divorce
Despite the challenges, same-sex couples in Utah have the same legal right to divorce as any other married couple. The Supreme Court's decision establishing marriage equality also ensured that same-sex couples can access legal processes to end marriages that aren't working.
While certain aspects of same-sex divorce present unique complications, particularly regarding children and long-term pre-marriage relationships, these issues can be navigated successfully with proper legal guidance and preparation. Many same-sex divorce cases in Utah resolve through negotiation and settlement rather than contentious litigation.
Same-sex couples facing divorce in Utah should remember they're entitled to the same legal protections and processes as any other married couple. With experienced legal counsel, attention to critical issues like parentage and property division, and focus on protecting what matters most, LGBT individuals can successfully navigate divorce and move forward with their lives.