Divorce is most often complicated. Divorce is likely to be even more complicated for the LBGT community. Before the case of Obergefell v. Hodges decided on June 26th, 2015, couples in same-sex marriages could obtain a divorce only in jurisdictions that recognized same-sex marriages, noted with some exceptions. Although same-sex marriage is a settled matter at the federal level and same-sex couples can marry and divorce in all states, there are still unsettled matters when it comes to same-sex divorce. This article summarizes some of the challenges faced by same-sex couples seeking a divorce, which the landmark case of Obergefell v. Hodges failed to address for the LGBT community.


Artificial Insemination

Erica Witt and Sabrina Witt were married in Washington, D.C. in 2014. They moved to Knoxville, Tennessee where Sabrina was artificially inseminated and gave birth to a baby girl in January 2015. Because Tennessee did not recognize same-sex marriage before the Obergefell case, Erica did not appear as the second parent on the child’s birth certificate. Although this divorce hearing took place in June 2016, the judge, in this case, ruled that the standing law in the state regarding parenting rights in the case of artificial insemination only applies to husbands. The women, in this case, did not adopt their child.


Child Born Prior to Marriage

A Maryland court of appeals ruled that Michelle Conover, filing for divorce and seeking parental rights to their child, is considered a third party and not a second parent because the marriage took place six months after their child was born. Only the name of the birth mother was listed on the child’s birth certificate. The decision was based on the current state laws, which are not clear on the rights of same-sex couples.


Redefining Legal Parenthood

A Lambda Legal case in New York State is currently arguing for the parenting rights of a non-biological mom whose relationship failed prior to same-sex marriage becoming legal. In this case, both mothers planned to have a child and raise him together. The non-biological mother, as well as the attorneys on the case, is focusing on what is in the best interest of the child. Brooke B., the non-biological parent, is seeking custody and visitation rights. “…Research from the University of California, Los Angeles School of Law Williams Institute estimates that in 2013, 15% of unmarried, same-sex couples nationwide were raising children.” (Wall Street Journal ). Given these statistics, this case’s outcome could preserve the legal protection of children’s rights in LGBT families who are currently experiencing a legal limbo.

There are unique challenges facing LGBT couples that seek to divorce and to continue to parent their children even after the Obergefell v. Hodges landmark case. The only way to protect your rights as a parent, even when legally married, is to adopt your children. Failure to do so will leave you at the mercy of current state parenting laws. These laws do not include the LGBT community. If you need assistance with understanding the requirements for divorce in your particular situation, you can contact a divorce attorney who’s experienced in same-sex legal issues in your neck of the woods.


Marjorie Soto’s gay marriage ended in divorce. Marjorie believes that there is a persistent denial that lesbian divorce exists. She blogs about this and other LGBT divorce issues at LifeInJeans.com. She helps lesbians impacted by divorce find community so they don’t have to go at it alone. Life in Jeans provides support through real stories and experiences.