LGBTQ+ divorce, custody and parentage
Most of divorce is the same for everybody. Two areas are not, and one of them can cost a parent their child. This page is about those — the gap between when a relationship began and when the law let it be a marriage, and what happens to a parent who never adopted.
This is not a fifty-state survey. Where a state is named below, we read its statute or its court’s own opinion. Where a state is not named, we did not check it — that is not the same as it having no law. Parentage and de facto parent standing vary more between states than almost anything else in family law, and the answer where you live may be better or worse than any example here.
Everything is quoted from the US Reports, a state legislature’s own site, or a court’s own opinion. Where the law offers nothing, this page says so rather than reassuring you.
The marriage-date problem
Obergefell v. Hodges settled the right to marry:
“The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of State.”
Obergefell v. Hodges, 576 U.S. 644 (2015) · supremecourt.gov
What it did not do is backdate anything. So a couple together since 1998 who married in 2016 may find that a court dividing property counts eight years of marriage, not twenty-eight — and that the house bought together in 2004, and the career one of them gave up in 2007, sit outside the marital estate entirely. That is not a technicality. It is often most of the money.
Three routes that exist, and one honest gap
- Massachusetts counts the cohabitation — but only for alimony. G.L. c. 208 § 48 defines the length of the marriage as running from the legal marriage, then adds that a court “may increase the length of the marriage if there is evidence that the parties’ economic marital partnership began during their cohabitation period prior to the marriage.” That provision governs the alimony sections. The property-division statute, § 34, is separate and directs the court to consider “the length of the marriage” without that expansion.
- Colorado recognized a 2003 common-law marriage. In In re Marriage of LaFleur & Pyfer (2021) the Colorado Supreme Court held that “a court may recognize a common law same-sex marriage entered in Colorado before the state recognized same-sex couples’ fundamental right to marry,” reasoning that an unconstitutional ban “cannot stand as an impediment to the recognition of a same-sex marriage predating that decision.” Property division and maintenance went back to be recomputed from the earlier date.
- Domestic partnership dates carry over, in two states we checked. Washington: “the date of the original state registered domestic partnership is the legal date of the marriage.” California substitutes the date of registration for registered domestic partners. If you registered before you married, that date may be your real start date — find the registration.
We found no authority for a general American rule either way, so we are not going to write “most states don’t allow this.” What we can say is that the routes above exist, that they are specific to those states, and that this is a question to raise with a lawyer at the start rather than after a proposal is on the table — because if the start date is arguable, it is the largest single number in the case.
The parent who never adopted
This is the section that matters most, and the one where the honest answer in some states is that you may have no standing at all.
Two Supreme Court decisions set the floor. V.L. v. E.L. (2016) — a mother who had raised the children from birth under a Georgia second-parent adoption, and whose adoption Alabama refused to honor:
“The Full Faith and Credit Clause forbids a State to disregard the judgment of a sister State because it disagrees with the reasoning underlying the judgment or deems it to be wrong on the merits… With respect to judgments, ‘the full faith and credit obligation is exacting.’”
V. L. v. E. L., 577 U.S. 404 (2016) · supremecourt.gov
And Pavan v. Smith (2017) held that a state listing a birth mother’s husband on a birth certificate must do the same for a birth mother’s wife, rejecting the argument that a birth certificate is merely a record of biology — because the state already listed a male spouse “even when the use of artificial insemination” meant he was not the biological father.
Because an adoption is a judgment, and a parentage presumption is a statute, and the Constitution treats those very differently. V.L. calls the obligation to honor a sister state’s judgment “exacting.” But the Court has separately held that a state need not “substitute for its own statute… the statute of another State reflecting a conflicting and opposed policy.”
So a birth certificate and a marital presumption may be enough at home and may not travel. A confirmatory or second-parent adoption converts your parenthood into the kind of thing every other state has to honor. It is expensive and it can feel insulting to adopt your own child. It is also the difference between a hard case and no case, and every family in this position should get advice about it while nothing is going wrong.
Franchise Tax Bd. v. Hyatt, 578 U.S. 171 (2016), on statutes; V.L., above, on judgments. The juxtaposition is ours — no single opinion states the contrast.
De facto parentage: four states, four different answers
Where there was no adoption, standing depends entirely on where you are. The Uniform Parentage Act (2017) § 609 offers a template — residence with the child “as a regular member of the child’s household for a significant period,” “consistent caretaking,” full parental responsibilities without expectation of payment — but a uniform act only matters where it is enacted, and enacting states have changed it.
- Washington enacted it and lowered the burden of proof to a preponderance of the evidence. It also imposes a gate: the claim must be brought “before the child attains eighteen years of age; and while the child is alive.”
- Maine requires the higher standard — the court adjudicates a de facto parent only on “clear and convincing evidence that the person has fully and completely undertaken a permanent, unequivocal, committed and responsible parental role in the child’s life.” An adjudication establishes parentage outright.
- New York got there by overruling itself. In Brooke S.B. (2016) the Court of Appeals held that “where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody.” Note what that requires you to prove: an agreement, made before conception.
- Ohio — where the answer is no. The Ohio Supreme Court has declined to adopt a psychological- or de facto-parent test, and described the gap in its own words: the legal status of such families “is largely undefined in Ohio” and “the current statutory definition of ‘parent’ is often unhelpful in custody determinations in families headed by same-sex couples.” In In re Mullen the non-biological mother — who had arranged the sperm donation and was named in a power of attorney — lost.
Having refused to create a de facto parent doctrine, the court told people what to do instead: “In the absence of a statutory framework, the sufficiency of the evidence to show voluntary relinquishment of a parent’s custodial rights is even more critical. Although not required, a written agreement will demonstrate the best evidence of the parent’s intention to share custody.”
That is a court telling families to paper it. If adoption is not possible where you are, a written co-parenting agreement made while everyone agrees is worth far more than the same conversation remembered differently two years later.
Statutes still written as though you do not exist
Not a tone complaint — a practical hazard, because a clerk, a registrar or a judge reading the words on the page can reach the wrong answer.
- Texas is gendered throughout its parentage chapter, and not merely as a leftover: the assisted-reproduction section is headed “HUSBAND’S PATERNITY OF CHILD OF ASSISTED REPRODUCTION” and provides that consent “must be in a record signed by the woman and her husband.” The marital presumption reads “A man is presumed to be the father of a child if… he is married to the mother.”
- Massachusetts — the first state to license same-sex marriage — still has a property-division statute that lets the court “assign to either husband or wife” the estate of the other.
- By contrast Washington is fully neutral and turns on consent and intent: “An individual who consents… to assisted reproduction by a woman with the intent to be a parent of a child conceived by the assisted reproduction is a parent of the child,” and “A donor is not a parent of a child conceived by assisted reproduction.” Washington also has a holding-out presumption that needs neither marriage nor biology — four years of residence and openly holding the child out as your own.
Protective orders: one statute that excludes you on its face
The Protection from Domestic Abuse Act still defines “household member” to include “a male and female who are cohabiting or formerly have cohabited.” In 2015 a woman in an abusive same-sex relationship applied for an order of protection and, in the Supreme Court’s own description, the “family court judge summarily denied Doe’s request, citing a lack of jurisdiction.”
The South Carolina Supreme Court struck the provision as applied to her — and expressly held the definition facially valid, on the reasoning that it “does not overtly discriminate based on sexual orientation.” So the words are still in the published code, and anyone reading the statute alone — including, on the evidence, a family court judge — can reach a conclusion the case law does not support.
Other states are drafted so the question never arises. Minnesota reaches “persons who are presently residing together or who have resided together in the past” and people in “a significant romantic or sexual relationship,” and tells the court how to assess that — length, type, frequency of interaction — which reduces the room for a judge to read a couple out of the statute. California’s Domestic Violence Prevention Act is neutral throughout.
Getting divorced at all
The “wed-lock” problem — married in a state that would marry you, living in one that would not divorce you — is largely gone after Obergefell, but residency rules still bite. California requires six months in the state and three in the county. It also kept a specific answer on the books: a same-sex couple married in California may dissolve the marriage in California even if neither spouse lives there, where the conditions in Fam. Code § 2320(b) are met. If you married in a state you have since left, check whether it has a provision like it.
One mechanic that catches people: in Washington, a registered domestic partnership “is dissolved by operation of law by any marriage of the same parties to each other.” If you registered and later married, there is one relationship to end, not two — but the date that matters may be the earlier one.
Dating again
We looked for data specific to LGBTQ+ people and the FTC does not publish a breakout by sexual orientation or gender identity. Rather than substitute an advocacy estimate, here is what the FTC does publish, which applies to everyone:
- Nearly 70,000 romance scam reports in 2022, $1.3 billion in reported losses, median loss $4,400.
- Most contact does not start on a dating app: “reports of romance scams that start with unexpected private messages on social media platforms are even more common.”
- Sextortion reports have risen more than eightfold since 2019 — scammers who obtain explicit images and then threaten to send them to your contacts. For anyone not fully out, that threat carries a weight the statistics do not capture, and it is worth knowing the pattern before it happens rather than after.
- The FTC’s own tell: “Nobody legit will ever ask you to help—or insist that you invest—by sending cryptocurrency, giving the numbers on a gift card, or by wiring money.”
And one legal point that is specific: in South Carolina, whether a new partner who becomes abusive can be kept away by an order of protection is a live question, for the reasons above. That is worth knowing before it matters.
More on the rest of it on dating again.
FTC Data Spotlight, “Romance scammers’ favorite lies exposed” · ftc.gov
How this page was built
From the official bound volumes of the United States Reports on supremecourt.gov, state legislatures’ own websites, and state supreme courts’ own published opinions. No advocacy organization’s summary, no law-firm content marketing, no news article used as authority for what the law is.
We could not verify the current count of states enacting the 2017 Uniform Parentage Act — the Uniform Law Commission publishes it only inside an interactive widget — so this page gives no count and names only the state whose enactment we read directly. Several states’ legislature sites were unreachable, which is why some obvious jurisdictions are absent.
Found an error, or a state where the law has moved? Tell us — it goes on the corrections page with the date and how long it was live.