CommunityMy FDL

Same Sex Divorce Issues Highlighted by Rosie O’Donnell’s Split from Partner

Rosie O'Donnell and Kelli Carpenter were one of the most famous married gay couples. But as of Tuesday, they are couples no more. Rosie and Kelli live in New York, but married in California.

Their split shows many of the issues that come up during a same sex divorce.

Getting Divorced

Only a few states and countries allow gay marriage. So a lot of couples take a trip to get married out of state and then go back to where they live.

But if their marriage doesn't work out, they may have trouble getting divorced.

As an example, Emma Ruby-Sachs, an attorney with Ruby & Shiller, writes at the Huffington Post about what would happen for a hypotethical Montana couple that goes to Toronto to get married:

As a resident of Montana, you cannot get a divorce in Toronto. Toronto, like most states with the exception of Nevada and a few others, has a year-long residency requirement for a divorce. In Montana, your relationship was never legally any different from two roommates. And so, you must complete a divorce, with all its entanglements and difficulties, without the assistance of the law.

Because Rosie and Kelli live in New York, they'll be able to get divorced. Though New York doesn't allow gay marriages, they do recognize them from other states for the purpose of getting divorced.

Custody and Visitation Issues

Rosie and Kelli have three adopted children and one child born to Kelli through sperm donation. If Rosie and Kelli had lived in a state that disallowed second parent adoption, only Kelli would have legal rights to the child she gave birth to.

Without being the legal parent, Rosie's visitation rights to Kelli's child would also depend on what state they lived in. In Montana, for example, the highest court

recently held

that non-legal parents do have visitation and decision rights to a child from a same sex relationship.


When married straight couples get divorced, one person often has to give the other person spousal support payments. That way the person with less income doesn't suffer an immediate drop in lifestyle. Along with spousal support, the person with more income would also have to give child support if the other person keeps custody of any children.

But if a same sex couple can't get divorced, then the person with lower income will lose these legal protections. It's possible, for example, that someone who left their job to take care of the house and family will not get any help from their ex-partner to help maintain his or her lifestyle.

[Cross-posted at the Gay Couples Law Blog, which discusses same sex family law, estate planning, and taxes.]

Previous post

Approve 71 weekend voter outreach and visibilities

Next post

Criticize Homophobic "No Homo" in Hip Hop and get your Pink Slip from Fox "News"

Gideon Alper

Gideon Alper