Skip to Content Top

How Does a Same Sex Divorce Work in Massachusetts?


Massachusetts is considered one of the most LGBTQ-friendly states in the country and a pioneer in championing the rights of the community. The state legalized same sex marriage back in 2003 — nearly 12 years before it was legalized in the rest of the country because this was a key priority in Massachusetts.

Just as same sex couples in Massachusetts can get married like their heterosexual counterparts do, they can also choose to end their marriage if and when they want to. However, depending on the circumstances, they might face certain challenges that are unique to same sex divorces.

At Davis Law Group, we are committed to protecting the marital and parental rights of same sex couples. We have handled several same sex divorce cases over the years and are familiar with the issues that same sex couples often face while ending their marriage. Led by top-rated divorce attorney Jay Davis, we can provide you with personalized, empathetic legal representation, ensure you are treated fairly by the system, protect your interests, and fight hard to achieve the best outcome possible.

How Does Same Sex Divorce Work in Massachusetts?

Under Massachusetts law, the process for getting a divorce is the same for same sex couples as well as heterosexual couples. You need to file a petition for divorce in the Probate and Family Court and serve your spouse with the papers.

If it is a no-fault or uncontested divorce, you and your spouse can work out all the details of your divorce with the help of your respective divorce attorneys and draft an agreement, which can make the divorce process a lot easier. If it is a fault-based or contested divorce, a legal battle might be inevitable.

Issues That Same Sex Couples Might Face During Divorce

Property Division

Under Massachusetts law, any property acquired by either of the spouses during the course of their marriage will be considered marital property. The problem, however, is that if you and your spouse started living together as a couple before same sex marriage was legalized, and if you acquired assets during this time period, it can be difficult to determine whether these assets should be treated as separate property or marital property.


Alimony can be a particularly problematic issue for couples who started cohabitating before same sex marriage was legalized in Massachusetts. Under the law, alimony is calculated based on the length of marriage.

For instance, if you were married for 4 years, you might be eligible to receive alimony for a period of 2 years. If you were married for 10 years, you might receive alimony for a period of 7 years. If you were married for 20 years or longer, you might be eligible to receive alimony indefinitely. You can find the details about general term alimony here.

If you and your spouse started cohabitating before same sex marriage was legalized, but got married long after it was legalized, the court might only take the length of your legal marriage into account while calculating alimony. In other words, even though you have been living together as a couple for more than 20 years, you might still not be eligible to receive alimony payments indefinitely.

The divorce attorneys at Davis Law Group understand that alimony can be a contentious issue in same sex divorces. If you started cohabitating with your spouse before 2003, we can gather the evidence needed to establish the fact that your economic marital partnership (as specified in Massachusetts General Law C. 208 S. 48) began long before you got married and make the argument that you are eligible to receive alimony payments indefinitely.

Child Custody

If your spouse happens to be the biological parent of your child (if they gave birth through assisted reproductive technology), and if you are the adoptive parent, you both have equal rights under the law regarding child custody.

On the other hand, if your spouse is the biological parent and if you have not legally adopted the child, the court might decide to grant them custody, as the rights of a biological parent usually trump the rights of a non-biological parent in most cases.

However, if you have a very strong bond with the child and if you have proven yourself to be a better and more responsible caretaker for your child compared to your spouse, the court might grant you visitation rights or even custody — regardless of your legal status as a parent.

Experienced Same Sex Divorce Attorneys in Massachusetts

Same sex divorces can be more complicated and more challenging than divorces involving heterosexual couples. In order to be able to protect your rights as a spouse and as a parent, you need to be represented by a skilled and experienced Massachusetts family law attorney.

Dedicated family law attorney Jay Davis and his legal team at Davis Law Group have decades of combined experience and have successfully handled several divorce and child custody cases involving same-sex couples. We are aware of all the potential issues that might reveal themselves during a same-sex divorce and know how to resolve them.

We are prepared to go the extra mile to achieve an outcome which is in your best interest. To discuss your case with an experienced Massachusetts same sex divorce attorney, call us today at (617) 752-6216 or contact us online and schedule a free consultation.

The post How Does a Same Sex Divorce Work in Massachusetts? first appeared on Davis Law Group.
Share To: