Unique Challenges and Considerations
The landmark Supreme Court decision in Obergefell v. Hodges (2015) brought nationwide marriage equality—a monumental victory for the LGBTQ+ community. However, dissolving these unions through divorce can still present unique legal complexities, particularly when navigating state-specific laws. While the emotional and financial aspects of divorce are similar across all couples, same-sex individuals in Missouri may face distinct legal hurdles. This blog post aims to illuminate these specific challenges under Missouri law.
Child Custody and Parentage in Missouri Same-Sex Divorce
For many LGBTQ+ individuals and couples, building a family is a deeply cherished goal, often realized through diverse avenues such as in vitro fertilization (IVF), artificial insemination, gestational surrogacy, and adoption. When these families face dissolution, the legal intricacies surrounding child custody and parentage can become especially complex.
While Missouri law generally presumes that a child born during a marriage is the legal child of both spouses—regardless of the couple’s gender identity—this presumption may not be as straightforward for same-sex couples in practice. Legal challenges may still arise, especially when a non-biological parent has not taken formal steps to secure parental rights.
To establish legal parentage for both partners in same-sex relationships, the following legal tools are commonly used in Missouri:
Second-Parent Adoption: This legal process allows a non-biological parent to formally adopt their partner’s biological or adopted child. It grants the non-biological parent equal legal rights and responsibilities, ensuring their continued relationship with the child is protected during and after divorce.
Co-Parenting Agreements: While not a formal method of establishing legal parentage, co-parenting agreements can outline the intended parenting roles and responsibilities of each partner. These agreements may be considered by Missouri courts in custody disputes, particularly when assisted reproductive technologies are involved. However, they do not substitute for legal adoption or court-ordered parentage and may not be enforceable.
Parentage Actions: In some cases involving assisted reproduction, courts may establish parentage through judicial proceedings—such as paternity or parentage actions—based on the intent of the parties at the time of the child’s conception. However, these proceedings can be legally complex, and outcomes may vary depending on the circumstances.
Without proactive legal steps like second-parent adoption, a non-biological parent may face significant challenges in asserting custody or visitation rights in a divorce. Missouri courts base custody decisions on the “best interests of the child,” and once legal parentage is established, courts evaluate custody in same-sex divorces using the same factors as they do for opposite-sex couples, including:
- The wishes of the parents and child regarding custody.
- The child’s relationship with parents, siblings, and other significant individuals.
- The child’s adjustment to home, school, and community.
- The mental and physical health of all parties.
- Each parent’s willingness and ability to provide continuing care.
- Which parent is more likely to allow meaningful contact with the other parent.
- Any history of abuse or domestic violence.
The Critical Role of Second-Parent Adoption in Missouri
When only one partner in a same-sex relationship is biologically related to the child—such as through sperm donation or the use of one partner’s egg with a surrogate—the other parent does not automatically have legal parental rights in Missouri. This makes second-parent adoption an essential legal safeguard.
Why It Matters:
Legal Security: Adoption ensures both parents have equal legal standing regarding healthcare decisions, education, and other parental responsibilities.
Emergency Authority: The non-biological parent will have legal decision-making power if the biological parent is unavailable.
Emotional and Legal Stability: Adoption supports the emotional integrity of the parent-child bond and ensures long-term legal recognition of that relationship.
Second-parent adoption is strongly recommended, even if both parents are listed on the child’s birth certificate, to prevent future legal disputes—especially during a divorce or if one parent moves out of state.
Property Division in Missouri and Long-Term Same-Sex Relationships
Dividing marital assets is often one of the most challenging aspects of divorce. This can be especially complicated for same-sex couples in Missouri who were in long-term relationships before they had the legal right to marry. Missouri is an equitable distribution state, meaning that marital property is divided fairly, though not necessarily equally. “Marital property” typically includes assets acquired from the date of legal marriage until the date of separation. For same-sex couples who lived together for years before marrying, this legal distinction can cause issues.
Consider This Example:
A same-sex couple cohabits in Missouri for 12 years before marrying in 2015. They divorce in 2025. Although their financial lives may have been intertwined for 17 years, only the 10 years of legal marriage may technically count when defining “marital property.” This can lead to disputes over which assets are subject to division.
Missouri courts may consider contributions made before marriage, particularly if those contributions directly supported property acquisition or joint financial growth. However, tracing and proving these contributions can be complex and requires experienced legal representation.
Spousal Maintenance in Missouri
Missouri law allows for spousal maintenance (also known as alimony) under Section 452.335 RSMo, but only if the court finds that the requesting spouse:
- Lacks sufficient property to provide for reasonable needs; and
- Is unable to support themselves through appropriate employment, or is the custodian of a child whose needs preclude outside employment.
When Awarding Maintenance, Courts Consider:
- Financial resources of the party seeking support.
- Time needed to gain education or training for employment.
- Comparative earning capacities of the spouses.
- Standard of living during the marriage.
- Duration of the marriage.
- Age, physical and emotional condition of the spouse seeking support.
- Ability of the other spouse to provide support while meeting their own needs.
- Conduct of the parties during the marriage.
- Economic circumstances at the time of divorce.
Because legal same-sex marriage has only been recognized since 2015, most divorcing same-sex couples in Missouri will have legal marriages of 10 years or fewer. However, Missouri courts may consider the entire length of the relationship, including pre-marital cohabitation, when evaluating what is fair and reasonable. This is particularly relevant when assessing maintenance for a partner who may have been economically dependent for years before the legal marriage.
Seeking Knowledgeable Legal Representation in Missouri
Divorce is never easy, but same-sex couples in Missouri may face unique legal hurdles—especially around child custody, parentage, property division, and spousal support. That’s why it’s essential to work with attorneys who understand both Missouri family law and the nuances of LGBTQ+ relationships.
If you’re a same-sex individual in Missouri contemplating divorce, recently served with divorce papers, or navigating post-divorce issues, we’re here to help. Our legal team is experienced in guiding LGBTQ+ clients through these challenging transitions with knowledge, compassion, and clarity.