How Are Marital Assets Divided in a Same-Sex Divorce?

One important difference between same-sex and “traditional” divorce is how courts may view which assets are “marital” and which are not.

Under Massachusetts law, all assets owned by both parties are considered “marital”, regardless of when the assets were acquired, and are therefore subject to marital division. As a practical matter, however, Massachusetts courts had long focused on when assets were acquired when determining how assets will be divided in a divorce. They might include positive assets—like a house, car, or retirement account—or negative assets like student loan debt. Courts are less likely to view assets acquired before the marriage as subject to division.

Fourteen years have passed since gay marriage was legalized in Massachusetts. With each passing year, fewer and fewer same-sex divorce cases in Massachusetts involve scenarios in which a court must determine how to divide premarital property that was acquired before same-sex marriage was legalized in Massachusetts. Of course, many same-sex couples who are seeking a divorce today were together before 2004, at a time when the law prohibited the spouses from getting married.

The problem is more acute for same-sex and LGBT couples who lived outside of Massachusetts–in states where gay marriage was illegal–prior to moving to the Commonwealth. For these couples, courts must determine how to treat premarital assets that were acquired by the parties while they cohabitated before moving to Massachusetts. This often requires a fact-specific analysis that centers on whether the parties would have gotten married in their former state had the option existed.

Before 2014, many same-sex couples across the United States were living together and acting as unofficial spouses long before they had the right to tie the knot and make their relationship official. If their prior state featured a civil union or a domestic partnership law, the asset division can become even murkier.

Many same-sex spouses have multiple starting points for their marriage. The date of the legal marriage is generally easy to determine, but the official marriage date can be tricky to pin down. If substantial assets were acquired by the parties before they were legally married, this can become a significant complexity in a divorce proceeding.

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