Since marriage equality became law nationwide in 2015, same-sex couples have gained the same rights to marry and divorce as opposite-sex couples. However, LGBTQ+ individuals going through divorce in Missouri may face unique considerations, particularly around parental rights, property division, and navigating a legal system still adapting to relatively recent changes in the law. Understanding these issues helps you protect your rights and interests during this difficult transition.
Marriage Equality and Divorce Rights
The Supreme Court's decision in Obergefell v. Hodges extended marriage rights to same-sex couples across all fifty states, including Missouri. With the right to marry came the corresponding right to divorce under the same legal framework that applies to all married couples. Missouri courts now handle same-sex divorces using the same laws, procedures, and standards they apply to any dissolution of marriage.
This means same-sex couples follow identical processes for filing petitions, dividing property, determining spousal support, and resolving custody matters. The ninety-day residency requirement applies equally, as does the thirty-day waiting period between filing and finalization. Courts use Missouri's equitable distribution system to divide marital property regardless of the spouses' genders.
However, practical differences sometimes arise because same-sex marriages became legal more recently than opposite-sex marriages. Issues like determining when property became marital property, establishing parental rights for non-biological parents, and addressing relationships that existed before legal marriage was possible can create complications that require careful legal navigation.
Establishing Parental Rights for Same-Sex Couples
One of the most significant challenges facing LGBTQ+ couples during divorce involves parental rights. While opposite-sex married couples benefit from marital presumption, automatically recognizing both spouses as legal parents of children born during the marriage, same-sex couples haven't always received equal treatment in this area.
A landmark 2021 Missouri court ruling clarified that presumed paternity laws are gender-neutral. This means married same-sex couples are now presumed to be the legal parents of children born during their marriage, regardless of biological relationships. This presumption applies whether conception occurred through artificial insemination, in vitro fertilization, surrogacy, or using egg, sperm, or embryo donors.
Despite this legal presumption, many family law attorneys still recommend that non-biological parents take additional steps to establish clear legal parentage. Adoption decrees provide the strongest legal protection for parental rights and ensure recognition across all jurisdictions. While presumptions can be challenged, adoption creates permanent, unquestionable parental status.
Adoption and Legal Parentage
For unmarried same-sex couples or those who want additional legal certainty, filing for a court-ordered Decree of Adoption establishes clear parental rights. This legal process provides several important protections, including legal recognition of both parents, established parental rights that courts in other states must honor, and protection against challenges to parental status.
After adoption is complete, parents can request a new birth certificate listing both parents. While birth certificates show who the state recognizes as parents, they don't create parental rights by themselves. Adoption provides the underlying legal foundation that birth certificates then reflect.
The adoption process typically involves filing a petition with the court, completing required background checks and home studies, attending hearings, and obtaining a final decree from the judge. While this requires time and effort, it provides peace of mind that both parents have legally protected relationships with their children.
Custody Rights During Divorce
When married same-sex couples with children divorce, custody determinations work similarly to those in opposite-sex divorces if both spouses have established legal parental rights. Courts evaluate custody based on the child's best interests, considering factors like each parent's relationship with the child, stability of proposed living arrangements, parents' abilities to cooperate on parenting decisions, the child's adjustment to home and school, and any history of abuse or neglect.
Missouri law recognizes both legal custody, which involves decision-making authority about important matters, and physical custody, which determines where children primarily live. Courts may award sole or joint custody of each type depending on what serves the children's needs. Parents who can work together effectively often receive joint legal custody even when one parent has primary physical custody.
However, when one spouse lacks legal parental rights, the situation becomes more complicated. In Missouri, non-legally recognized parents can petition for third-party custody during divorce if they served as co-parents. To succeed with a third-party custody petition, courts must find that the legal parent is unfit, unsuitable, or unable to care for the child, the child's welfare requires custody with the third party, and the custody arrangement serves the child's best interests.
Third-Party Custody Considerations
Third-party custody petitions face higher legal standards than disputes between two legal parents. Courts presume that legal parents should have custody unless someone proves this would harm the child. Non-legal parents must demonstrate not only that they have strong relationships with children but also that removing custody from the legal parent is necessary for the child's welfare.
This challenging standard highlights why establishing legal parentage during the relationship is so important. Couples who assume their parental roles are secure based on marriage or biology alone may face heartbreaking custody battles during divorce when only one partner has legal parental status. Taking steps to formalize both parents' rights while the relationship is intact protects everyone, especially the children.
When non-legal parents cannot obtain custody, they also typically aren't required to pay child support. While this might seem advantageous financially, it represents the loss of legal recognition of their parental relationship and responsibilities.
Property Division Considerations
Missouri's equitable distribution system applies to all divorcing couples regardless of gender. Courts divide marital property fairly, though not necessarily equally, based on factors including economic circumstances, contributions to acquiring property, value of separate property each spouse retains, conduct during the marriage, and custodial arrangements for children.
However, same-sex couples sometimes face unique property division challenges. If couples lived together and accumulated property before marriage became legal, determining what constitutes marital versus separate property can be complex. Courts generally only consider property acquired after legal marriage as marital property, though exceptions exist.
Some same-sex couples entered domestic partnerships or civil unions before marriage equality. These legal relationships must be dissolved separately from marriages, which can complicate property division if assets and debts accumulated during both the earlier relationship and the subsequent marriage. Clear documentation of when assets were acquired and how they were titled helps sort through these issues.
Retirement Benefits and Spousal Support
The timing of marriage equality affects retirement benefits accumulated by same-sex couples. Federal recognition of same-sex marriage only began in 2013 with United States v. Windsor, followed by nationwide marriage rights in 2015. This relatively recent timeline means many same-sex couples have shorter marriages than opposite-sex couples of similar ages.
Marriage length significantly influences spousal support determinations. Courts consider marriage duration when deciding whether to award maintenance, how much to provide, and for how long payments should continue. Same-sex couples who were in committed relationships for decades before they could legally marry may have shorter legal marriage durations for purposes of support calculations.
Some same-sex couples navigate these issues by presenting evidence of their long-term committed relationships that existed before legal marriage was possible. While courts must apply statutory standards based on legal marriage duration, demonstrating the full length of the relationship provides context for understanding economic dependencies and contributions that developed over time.
Pre-Marriage Relationships and Legal Recognition
Many same-sex couples lived together in committed relationships for years or decades before they could legally marry. During those years, they may have purchased homes together, built businesses, raised children, and intermingled their finances just as married couples do. However, legal recognition only began when they could formally marry.
This creates potential inequities during divorce. Property accumulated during the pre-marriage relationship typically isn't considered marital property subject to division. The non-titled partner in a home purchased before marriage may have no legal claim despite contributing to mortgage payments and improvements for years.
Some couples address these concerns through cohabitation agreements or partnership contracts drafted during their pre-marriage relationships. These documents can help establish intentions about property ownership and provide evidence supporting equitable claims during divorce. However, not all couples created such agreements, particularly in earlier years when legal options for same-sex couples were limited.
Prenuptial Agreements
Prenuptial agreements offer same-sex couples the same opportunities to define property rights and support obligations that they provide opposite-sex couples. These contracts allow partners to specify how property will be divided if the marriage ends, whether spousal support will be paid, and other financial arrangements.
For same-sex couples with assets or relationships predating legal marriage, prenuptial agreements can be particularly valuable. They provide ways to recognize contributions and property interests that developed during pre-marriage relationships, address property division in ways that reflect the full duration of commitment rather than just the legal marriage, and protect inheritances or family property that might otherwise become marital assets.
To be enforceable, prenuptial agreements must meet specific legal requirements including voluntary execution by both parties, full financial disclosure before signing, opportunity for each party to consult independent legal counsel, and terms that aren't unconscionable or grossly unfair. Having experienced attorneys draft and review these agreements helps ensure they will hold up if challenged during divorce.
Choosing an LGBTQ+-Friendly Attorney
Working with attorneys who understand the unique issues facing LGBTQ+ couples makes a significant difference in divorce outcomes. While all family law attorneys should apply the law fairly regardless of clients' sexual orientation or gender identity, practical experience with issues specific to same-sex relationships provides valuable advantages.
LGBTQ+-friendly attorneys understand concerns about parental rights for non-biological parents, complexities around property accumulated during pre-marriage relationships, potential bias that might still exist in some courts despite legal equality, and resources available to same-sex couples navigating divorce. They also create comfortable environments where clients can discuss their situations openly without fear of judgment or misunderstanding.
Many bar associations maintain referral services that can connect you with attorneys experienced in LGBTQ+ family law matters. Local LGBTQ+ community organizations may also provide recommendations based on their members' experiences with various attorneys.
Addressing Name Changes
Some individuals changed their names when entering into marriage or may want to change their names as part of a divorce. Missouri law allows people going through divorce to request name changes as part of the dissolution process. The court can restore a previous name or approve the adoption of a new name.
This process is typically simpler than pursuing a separate legal name change proceeding. By including the name change request in divorce paperwork, you accomplish both legal actions simultaneously. However, you'll still need to update identification documents, financial accounts, and other records to reflect your new legal name after the court approves the change.
Domestic Partnerships and Civil Unions
Some same-sex couples entered domestic partnerships or civil unions in Missouri or other states before marriage equality became law. These legal relationships continue to exist separately from marriages unless formally dissolved. If you entered a domestic partnership or civil union and later married, you may need to dissolve the earlier legal relationship in addition to divorcing.
Failing to properly terminate domestic partnerships or civil unions can create legal complications, particularly if they were registered in states other than Missouri. Different jurisdictions have different rules about how these relationships interact with marriage and what procedures apply for ending them. Addressing all applicable legal relationships ensures clean breaks without lingering legal entanglements.
The Role of Mediation
Mediation offers particular benefits for LGBTQ+ couples navigating divorce. This confidential process allows couples to resolve disputes privately with a neutral third party's help rather than through public court proceedings. For couples concerned about bias or privacy, mediation provides a more comfortable setting.
Mediators help couples communicate effectively, identify areas of agreement, explore creative solutions, and develop comprehensive settlement agreements addressing all aspects of their divorce. When parties can work together cooperatively, mediation typically costs less and concludes faster than traditional litigation while giving couples more control over outcomes.
However, mediation isn't appropriate for all situations. Cases involving domestic violence, severe power imbalances, or parties unable to negotiate in good faith may require traditional court proceedings. Evaluating whether mediation fits your situation should be done carefully with legal advice.
Children's Preferences and Best Interests
Missouri courts may consider the preferences of children age twelve and older when making custody determinations, though they aren't required to follow those preferences. The child's best interests remain paramount, and sometimes what children want differs from what serves their welfare.
In cases involving same-sex parents, courts should not consider parents' sexual orientation or gender identity as factors against custody unless actual evidence shows these somehow harm children. Research consistently shows that children raised by same-sex parents fare equally well as those raised by opposite-sex parents. Any bias against LGBTQ+ parents violates legal principles and can be challenged.
Moving Forward After Divorce
Divorce presents challenges for all couples, regardless of their sexual orientation or gender identity. For LGBTQ+ individuals, additional layers of complexity may arise around parental rights, property division, and navigating systems still adapting to relatively recent legal changes. However, Missouri law now provides same-sex couples the same rights and protections that opposite-sex couples receive during divorce.