Measuring the Length of Same Sex Marriage

Formally, under Massachusetts law, the same rules and procedures that govern traditional marriage also apply to same-sex marriage. There are no special procedures that govern gay and lesbian marriages.

Same-sex divorce in Massachusetts presents many of the same issues as divorce involving heterosexual partners, including the division of assets, spousal support, and child custody. Still, some issues are unique to gay marriage, and thereafter, gay divorce in Massachusetts. For example, many gay and lesbian couples considered themselves married long before the law permitted.


Massachusetts led the charge in legalizing gay marriage with its 2003 decision of Goodridge v. Department of Public Health. 798 N.E.2d 941 (Mass. 2003). The Supreme Judicial Court expanded the definition of marriage to include same-sex unions. It found that limiting the validity of marriage to heterosexual unions violates the Massachusetts Constitution. Throughout the next decade, dozens of states followed suit, leading up to the landmark decision of Obergefell v. Hodges, 576 US (2015), in which the United States Supreme Court found that same-sex couples have a constitutional right to marry.

“[T]he right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry.” Each of the United States must now recognize lawful same-sex marriage performed in other states. This decision by the highest court in our country legalized same-sex marriage across the nation. In doing so, the Court also legalized same-sex divorce.

Still, much is left to explore on the subject of gay and lesbian marriage in the Commonwealth of Massachusetts, and lawyers continue to grapple with how the laws apply to same-sex divorce and separation.

Lingering Complexities

The laws pertaining to the division of marital assets and alimony during a Massachusetts divorce continue to prove more convoluted for homosexual couples, even if not on the surface. There may be complications relating to property division, which is largely based on the distinction between marital property and separate property. If two people have been living together as a married couple in every way for many years, but have only been legally married for three, what constitutes marital property is questionable. Further, with the repeal of the Federal law known as Defense of Marriage Act assets such as federal retirement benefits and pensions are now recognized as part of same-sex marital assets that are subject to equitable division, which leads to other predicaments.

One of the greatest obstacles in a Massachusetts same sex divorce surfaces when a court determines how long a couple has been married. When the time a couple lived together as a family far outweighs the time during which they were legally married, the court must contemplate what is considered fair in the divorce.

Measuring the Length of a Same-Sex Relationship

The length of a marriage is a crucial component of divorce in Massachusetts. Alimony, property division, and differentiating between marital property and separate property are complicated matters for any couple. Division of property follows equitable distribution laws, requiring a judge to divide assets equitably — or fairly — under the law, but not necessarily equally. Alimony, or spousal support, is based on a durational formula, which is outlined in Massachusetts alimony law. A judge considers the length of a marriage to determine how property is to be divided and alimony awarded in the event of a divorce. Specific limits are set in regard to the length of a marriage and for how long alimony is to be paid.

For example, if you were married for five years, you may receive alimony for up to 2 ½ years. If you were married for longer than twenty years, the court may award alimony through full social security retirement age. A short-term marriage typically results in shorter time that alimony may have to be paid. Longer marriages less than 20 years may demand payment for up to 80 percent of the length of the marriage. Alimony laws aim to affect all married couples, no matter the sexual orientation.  However, due to historical bans on same-sex marriage, a gay or lesbian couple may have been living together and holding themselves out as a married couple for many years prior to the legalization of same-sex marriage. This complicates any court’s determination of a marriage’s duration for purposes of property division and alimony awards compared to traditional couples.

It can be greatly unfair to tally the years a same-sex couple has been married if the right for them to marry only recently emerged as an option despite many prior years of partnership and commitment. Additionally, if both parties cannot agree on the length of the marriage, this can create additional, significant problems.

What is the Solution?

Legal experts have argued that courts should “tack on” years for long-term relationships that preceded marriage to account for the period during which a homosexual couple was not legally allowed to marry.

The law governing alimony defines “length of marriage” as the period of time from the legal marriage date to the service of complaint of divorce, but permits a judge to increase the payment period when there is evidence that the parties’ economic partnership began during cohabitation before the marriage.

In 1996, the Massachusetts Appeals Court heard a relevant case concerning a heterosexual couple. The court affirmed a divorce judgment that considered the contributions of the parties during a period of pre-marital cohabitation. In the circumstances of a divorce proceeding, the judge fashioned an equitable division of marital assets under Massachusetts law “in considering the parties’ premarital contributions to assets brought into the marriage during a ten-year cohabitation period before the marriage.” Moriarty v. Stone 41 Mass. App. Ct. 151 (1996).

In the post-divorce period that involves payment of alimony from one ex-spouse to the other, Massachusetts law authorizes a judge to suspend, reduce, or terminate an alimony award based on a period of cohabitation where the spouses maintain a “common household” for at least three continuous months. (G. L. c. 208, § 49(d)). The definition includes the sharing of a primary residence with the other person, among other factors. The existence of such a relationship has an effect on the obligation of spousal support.

In summary, when it comes to divorce, a couple may count the years during which they were together prior to marriage, if they are able to provide proof. The evolving issues of same-sex divorce make it important to hire an experienced divorce lawyer as early in the process as possible. Because a same-sex divorce poses unique challenges, knowing your legal rights and options can be the key to fair treatment. Your divorce lawyer can help you tackle the complexities and ambiguities pertaining to same-sex couples in Massachusetts.


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