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How does same-sex and opposite-sex divorce differ?

Marriage and divorce equality is back in the headlines. But, while marriage rules are the same for both opposite- and same-sex couples, divorce can be different for same-sex divorcees, depending on their relationship.

Child custody

Unfortunately, for Savannah, Georgia, same-sex couples, having a child is always complicated. And, that complicated nature extends to divorce as well because child custody law is completely based on biology and adoption, with a preference always given to biology.

For a same-sex couple, usually, only one spouse is the biological parent, and the other parent is only related by blood if there was some genetic donation from a relative. This can put the non-biological parent at a disadvantage. Indeed, some lesbian divorcees claim the biological mother was given primary custody simply because she carried the baby. Even in adoptions, depending on whether both adoptions are legal, there may be complications there as well.

Social roadblocks

Even for childless same-sex couples, there are unique divorce roadblocks. The first one is societal, or at least, perceived, community-based. Specifically, married members of the LGBTQIA+ community may feel guilt over even the idea of divorce because of how long it took to get marriage equality. Popular culture has also done very little to normalize same-sex divorce.

Property division

Second, if the couple was together for many years (or decades) prior to marriage, the property division process can be very different. For opposite-sex couples, courtships usually last a year or two, but often, less. Since marriage equality is a relatively recent legal development, which is not always the case for same-sex couples.

This means that a significant amount of the “marital estate” was purchased prior to the marriage. During the property-division process though, only those items purchased or intermingled during the marriage are separated. All premarital property is left with the pre-marital owner. For couples who were together for long periods of time prior to the marriage, most of the estate may have been created prior to the marriage. This can be especially problematic for stay-at-home spouses and retirement accounts.


The goal of the same-sex couple should be to solve these problems now, before a divorce, and without leaving it to a random divorce judge. A postnuptial agreement can be utilized to solve both the child and property issues. It can outline how assets should be divided and even include child custody arrangements. But, the key is to enter these agreements now, when the Savannah, Georgia, couple is in love.