A St. Louis same-sex divorce lawyer deals with the same Missouri divorce law as any other case, plus a short list of questions that really do differ when the marriage came years after the relationship began.
The short answer. Missouri applies the same divorce statutes to same-sex and opposite-sex couples. There is no separate legal track. Because same-sex couples could not marry in Missouri until 2014 and 2015, though, a few distinct issues come up. How courts treat the years together before marriage was possible. How federal benefits that depend on the length of the marriage, like Social Security and military pensions, measure that length. And how parentage works for a child born before the couple could marry. This page goes deep on those questions. For the overview, see our Missouri same-sex divorce attorney page.
1The marriage timelinewhy your dates matter
2Property from before the wedding452.330, partition, implied contract
3Federal benefit thresholdsSocial Security and military
4Parentage and custodySchaberg, adoption, equitable parent
5Retirement accountsthe coverture fraction
6Questions we hear mostquick answers
Missouri’s Same-Sex Marriage Timeline and Why It Matters
Marriage equality reached Missouri in stages, and the date your relationship crossed each line can matter later in a divorce.
Property Division and the Years Before You Could Marry
This is the most consequential question in most long-term same-sex divorces, and it does not have a clean, settled answer in Missouri or nationally.
The Core Problem
Missouri divides property under section 452.330. Property acquired during the marriage is marital. Property acquired before it is generally separate. For a couple who married in 2016 after ten years together, that rule counts a decade of shared life and jointly built assets as premarital, even though the couple could not have married any sooner.
The statute’s five property division factors do not include a separate length of marriage factor.
That is different from the maintenance statute, section 452.335, which lists “the duration of the marriage” as a factor. So the length of a pre-marriage relationship tends to come up most directly in a maintenance request. A long pre-marriage economic partnership can still be argued into property division through the contribution and economic circumstances factors.
If you registered as domestic partners, keep that record. The City of St. Louis has run a domestic partnership registry since 1998, under Ordinance 64401. A dated, official registration is the kind of evidence that can support an argument that your economic partnership began well before your legal marriage. Our domestic partnerships page explains what registration does and does not provide.
How Other States Have Handled It
No published Missouri appellate decision squarely addresses how far back the marital property clock can go for a same-sex couple’s relationship before marriage. Other states have split, and Missouri courts sometimes look to other states in new areas.
The Connecticut Supreme Court held in Loughlin v. Loughlin, 280 Conn. 632 that counting premarital cohabitation as part of the length of the marriage is improper.
Massachusetts alimony law lets a court increase the length of the marriage when the couple’s economic partnership began while they lived together before marrying.
Two Tools That Do Not Depend on Marriage
Two other remedies can reach property from before the wedding. Neither one needs a marriage at all, which is why they matter most for a couple who split up before marriage was possible.
- Any co-owner of jointly titled property can ask a court to divide it or order it sold, under Chapter 528
- Also reaches jointly owned personal property, under section 528.620
- Only reaches property titled in both names
- Does not address maintenance or weigh the section 452.330 factors
- Unmarried partners can have an enforceable implied agreement to share what they built, under Hudson v. DeLonjay, 732 S.W.2d 922
- Can reach assets that were never jointly titled
- Judged like any other implied contract, on the couple’s conduct and reasonable expectations
- You have to prove the agreement existed
Missouri courts treat partition as close to automatic. In Stout v. Stout, 564 S.W.2d 89, the court described the general rule that, absent an agreement not to partition, “the right to do so is absolute.” Partition has real limits a divorce does not, though. If a house or account is in only one partner’s name, the other has no partition claim to it, however much they contributed. And once a divorce case is filed, jointly owned property is generally handled inside the divorce rather than through a separate partition suit. Partition fits a relationship that ended before marriage was possible, not a workaround once a divorce is under way.
The implied contract claim reaches further. Hudson rejected the older view that agreements between unmarried partners were unenforceable as a matter of public policy. For a couple whose finances were never neatly divided by whose name was on what, it can reach income, contributions to a partner’s separate account and unequal investments in a shared life, if the facts support an agreement to share. That is a real burden of proof, not an automatic right.
Federal Benefits Tied to the Length of the Marriage
This is where the marriage date turns into dollars. Two major federal programs use a length of marriage threshold measured from the legal marriage date, with no allowance for couples who could not marry sooner.
Parentage and Custody in a Same-Sex Divorce
Children Born During the Marriage
In Schaberg v. Schaberg, 637 S.W.3d 512, the Missouri Court of Appeals held that the presumption of parentage in section 210.822 “applies equally to non-birthing spouses in same-sex marriages or opposite-sex marriages.” A non-biological spouse is presumed to be a legal parent of a child born during the marriage, the same way a husband is presumed to be the father, without a separate adoption.
Children Born Before the Marriage
Schaberg covers children born during a legal marriage. It does not reach a child born before the couple married. In that situation a parent who is neither biological nor adoptive is on much weaker footing, and if the marriage ends, that parent may have no automatic right to seek custody or visitation.
If your child was born before your marriage and no adoption was completed, address it before a divorce is filed, not after. Missouri law has no automatic substitute for that adoption. Completing a stepparent adoption after marrying is one of the most protective steps a couple in this situation can take. For the general parentage framework, see our paternity and parentage page.
Retirement Accounts and the Marriage Date
Pension division is where the marriage date often shows up in the most concrete numbers, because the formula Missouri courts use is built around the length of the marriage.
For a pension that has not yet matured, one approach Missouri courts use is “wait and see.” The pension is divided only when benefits begin, using a coverture fraction. In Lynch v. Lynch, 665 S.W.2d 20, applying the framework of Kuchta v. Kuchta, 636 S.W.2d 663, the court awarded one-half of the benefit in the proportion found by dividing the years of the marriage by the years of employment.
That fraction counts years married, not years together. For a couple who built a career and a retirement account together for a decade before they could marry, that decade falls outside the marital share entirely. It is the same problem as in property division, showing up as a calculable number inside a formula courts already use. For how the division is actually carried out, including drafting a Qualified Domestic Relations Order, see our QDRO and retirement account division page.
Talking With a St. Louis Same-Sex Divorce Lawyer
The legal framework for divorce does not change based on who you are married to, but the practical issues in a long relationship that only recently became a legal marriage can. We help clients build the record these cases need: documentation of a long economic partnership for maintenance and property arguments, a clear picture of which federal benefits are or are not available given your marriage dates, and, where parentage was not secured before the marriage, a clear assessment of where that leaves you on custody. If you are looking for a St. Louis same-sex divorce lawyer, we can walk through how these issues affect property division, spousal maintenance and child custody in your case.
Not sure how this applies to your situation?
Bardol Law Firm handles family law and nothing else, in St. Louis County, St. Louis City, St. Charles County and Jefferson County. We generally return calls within one business day.
Same-Sex Divorce Questions We Hear Most
Is same-sex divorce handled differently than opposite-sex divorce in Missouri?
Procedurally, no. The same statutes, the same no-fault ground that the marriage is irretrievably broken and the same court process apply. The practical differences come from how recently Missouri recognized same-sex marriage, which raises questions about the years together before that.
Does it matter where we got married if it was not Missouri?
No. A Missouri court can grant your divorce as long as one of you meets the 90 day residency requirement, including for a marriage performed in another state or country before Missouri recognized same-sex marriage.
Can the years we were together before we could marry count toward property division?
Possibly, but not as years of marriage. Missouri’s property factors have no length of marriage factor. A long economic partnership before the wedding may still be relevant to the contribution and economic circumstances factors, and no Missouri appellate ruling has settled how far that goes.
Can we argue our relationship really started years before our wedding?
Yes, you can present that evidence, and it matters most for maintenance. The duration of the marriage is an express maintenance factor. Because the law here is unsettled, a well-documented record of your financial and relationship history is important.
We owned a house together before we could marry. Can either of us force a sale or division?
If both names are on the deed, either co-owner can bring a partition action under Chapter 528, married or not. Once you are married and a divorce is filed, the same property is generally handled inside the divorce case instead.
Will I qualify for Social Security benefits on my former spouse’s record?
Only if your legal marriage lasted at least 10 years. Federal law measures from the legal marriage date, with no exception for couples who were together longer but could not marry sooner.
Are military pension and benefit rules different for same-sex couples?
The rules are the same, and so are the thresholds. The 10/10 rule for direct pension payment and the 20/20/20 rule for continued health care apply strictly to the legal marriage date, which can be an obstacle for couples who married late in a long relationship.
Is my non-biological child legally mine if we divorce?
If the child was born during your marriage, you are presumed to be a parent under Schaberg v. Schaberg. If the child was born before your marriage and no adoption was completed, your status is uncertain and needs individual legal attention.
I raised my spouse’s child for years but never adopted. Do I have any custody rights?
It is difficult under Missouri law. Missouri has not adopted the equitable parent doctrine. Without an adoption, a non-parent generally has to seek third-party custody or visitation, which requires showing that each parent is unfit, unsuitable or unable, or that the child’s welfare requires it. That is why completing an adoption, when it is available to you, is worth doing sooner rather than later.
This page provides general information about Missouri law and is not legal advice. Case law and statutes are cited for illustration, every situation depends on its own facts, and outcomes are never guaranteed. The example scenario is hypothetical and does not describe an actual client or case. Federal benefit rules are administered by federal agencies and can change, so confirm current details with those agencies. Reading this page does not create an attorney-client relationship.
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