Marriage equality is recognized across the United States, but equality in theory does not always mean equality in practice. This is particularly true when it comes to divorce. For many same-sex couples, separation becomes even more complicated when one spouse lives in another state with different marriage, adoption, or parental recognition laws.
Interstate divorces often involve conflicting state laws, complex jurisdictional issues, and questions about whether each state will recognize the rights granted in another. For same-sex couples, these questions are not merely technical: they determine who retains parental rights, how property is divided, and even whether a marriage is fully recognized.
At the Law Offices of Diane J.N. Morin, Inc., we understand how deeply personal and legally complex these cases can be. Our firm works with clients throughout California and beyond to protect their rights and navigate the patchwork of laws that continue to affect same-sex families.
The Patchwork of LGBTQ+ Family Law in the United States
Although the 2015 Supreme Court ruling in Obergefell v. Hodges made same-sex marriage legal nationwide, the decision did not erase the decades of inconsistent laws that preceded it. Many states still treat issues like parentage, adoption, and surrogacy differently, and not all courts interpret Obergefell in the same way.
For instance, while marriage equality is now universal, some states continue to impose barriers in recognizing same-sex parental rights, particularly when children were born through assisted reproductive technology. Others maintain outdated statutes that have not been rewritten to include gender-neutral language. This lack of uniformity creates significant challenges when couples move across state lines or when one spouse files for divorce in a jurisdiction that interprets these laws narrowly.
Jurisdictional Challenges in Filing for Divorce
To file for divorce, at least one spouse must meet the residency requirement of the state where the case is filed. This simple rule can create immediate complications for same-sex couples who married in one state but moved to another that was historically resistant to LGBTQ+ rights.
Before nationwide marriage equality, some states refused to dissolve same-sex marriages performed elsewhere. While this is no longer legally permissible, remnants of that resistance can still surface in how courts approach these cases. A spouse living in a less LGBTQ+-friendly jurisdiction may face longer processing times, unsympathetic judges, or procedural obstacles when seeking recognition of their marriage.
California, by contrast, has been proactive in ensuring that same-sex couples receive equal treatment in family court. For couples living apart in different states, filing in California may offer greater protection, especially if one spouse resides in the state or if marital property is located here.
Recognition of Out-of-State Marriages
One of the more subtle complications arises when a couple’s legal history includes both a domestic partnership and a subsequent marriage. Many same-sex couples registered domestic partnerships before marriage equality became law, later marrying when it became legally possible. In interstate divorces, confusion often arises about whether these are separate legal relationships or part of the same union.
Some states automatically converted domestic partnerships into marriages; others did not. When couples later separate, the question becomes: when did the marriage truly begin? This affects property division, spousal support, and even the calculation of marital duration for long-term support purposes. California family courts are experienced in resolving these overlaps. Still, other states may not recognize domestic partnerships at all, creating additional hurdles in dissolution proceedings.
Property Division Across State Lines
Property division is one of the most complex aspects of interstate same-sex divorce, largely because each state has its own rules. California is a community property state, meaning marital assets are divided equally. Many other states follow equitable distribution, which allows for division based on fairness rather than equality.
When spouses own property in multiple states, this difference can cause confusion and conflict. A home purchased jointly in a non-community property state might be treated differently depending on where the divorce is filed. Retirement accounts, stock options, or real estate acquired during the marriage may also be subject to differing state interpretations of what constitutes “marital property.”
In some cases, couples discover that property laws in another state fail to recognize their marriage’s full legal duration, particularly if they were together before Obergefell but could not legally marry until later. California courts, however, often consider the length of the relationship, not just the marriage, when dividing property for same-sex couples who faced delayed recognition of their unions.
Custody and Parental Rights Complications
Perhaps the most emotionally charged issue in same-sex interstate divorces involves child custody. When children are born through assisted reproduction, surrogacy, or second-parent adoption, one parent may lack a biological connection to the child. While California law recognizes both spouses as legal parents, some states still limit parental rights to biological or adoptive parents, ignoring intended parentage.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) governs which state has authority over custody disputes, but even this uniform law can produce conflicting outcomes. For example, a California court may recognize a non-biological parent as having equal parental rights, while another state may deny those rights entirely.
To prevent such conflicts, same-sex couples are often advised to secure court-issued parentage judgments or adoption decrees that will hold up across jurisdictions. These proactive steps ensure that both parents’ rights remain intact even if one moves to a less protective state.
Enforcement of Out-of-State Orders
After a divorce is finalized, ongoing obligations such as custody schedules, spousal support, and child support often require enforcement in more than one state. Under the U.S. Constitution’s Full Faith and Credit Clause, states are generally required to honor judicial orders from other states. However, when it comes to family law, some courts have attempted to narrow that obligation.
For example, if a non-biological parent has a California judgment recognizing their parental rights, another state with restrictive parentage laws might delay or resist enforcing that order. Similarly, differing interpretations of spousal support or marital status could lead to enforcement delays. Legal counsel familiar with interstate enforcement can take steps to register California judgments properly and challenge any attempts to undermine them.
Complications in Adoption and Parentage Recognition
Even with nationwide marriage equality, adoption laws remain inconsistent. States vary in how they recognize second-parent adoptions, step-parent adoptions, and parentage established through surrogacy agreements. Some states impose additional restrictions or procedural barriers that can disadvantage same-sex parents.
When same-sex couples adopt children in California and later move to another state, they may face challenges if that state does not equally recognize both parents’ rights. To mitigate these risks, it’s often recommended that parents obtain court orders of adoption or parentage that are explicitly recognized under California law. These court-issued documents provide stronger protection than birth certificates alone when relocating or divorcing across state lines.
Tax, Benefits, and Federal Law Intersections
Federal recognition of same-sex marriage ensures equal access to tax benefits, Social Security, and retirement accounts. Still, federal uniformity does not erase state-level discrepancies. Interstate divorces can create confusion in how property transfers, alimony, or retirement withdrawals are taxed.
Couples may also face differing interpretations of federal benefits when state courts issue orders that conflict with federal eligibility rules. For example, certain state judgments about spousal support or community property distribution may have unintended federal tax consequences. Working with a divorce attorney who understands both federal and state frameworks can help prevent costly errors.
Practical Steps for Same-Sex Couples Facing Interstate Divorce
Same-sex couples can take proactive steps to protect their rights before and during interstate divorce proceedings.
First, consult a family law attorney who has specific experience with LGBTQ+ and multi-jurisdictional cases. These cases often require coordination between courts and attorneys in multiple states. Second, when possible, file for divorce in the state most favorable to your rights. California often provides stronger protections for same-sex couples and parents.
Third, if children are involved, ensure both parents’ rights are formalized through adoption or a parentage judgment before relocation. Finally, maintain complete documentation of your marriage, domestic partnership, property acquisitions, and any adoption or custody orders. This recordkeeping can prevent disputes over recognition later.
Why Work With a California LGBTQ+ Divorce Attorney
California stands at the forefront of LGBTQ+ family law, offering some of the most progressive protections in the country. The state’s courts and legislature have worked to ensure that same-sex couples are treated equally in matters of marriage, divorce, and parentage.
At the Law Offices of Diane J.N. Morin, Inc., we represent clients in complex same-sex divorce cases that cross state lines. Our firm helps couples navigate conflicting laws, enforce parental rights, and ensure fair division of property regardless of where the other spouse resides. We understand both the emotional toll and legal intricacies of these cases and approach each one with care, precision, and advocacy.
Professional Legal Counsel for Complex Same-Sex Divorces
Even a decade after Obergefell v. Hodges, the legal landscape for same-sex families remains uneven across the United States. When a divorce involves multiple states with differing interpretations of LGBTQ+ family law, the stakes are high and the path forward can be daunting.A knowledgeable California family law attorney can bridge these legal divides, ensuring that marriages are recognized, property is divided fairly, and parental rights are protected no matter where life takes you. The Law Offices of Diane J.N. Morin, Inc. is proud to help clients safeguard their families and secure justice in even the most complex interstate same-sex divorce cases. Learn more about how we can assist you by scheduling your consultation today.