Is a Same-Sex Divorce in Arizona the Same Process as a Regular Divorce?

Divorce is never easy—emotionally, financially, or legally. For same-sex couples in Arizona, the question often arises: Is a same-sex divorce handled the same way as a heterosexual divorce? The short answer is yes—Arizona law treats same-sex and opposite-sex marriages equally when it comes to divorce. However, unique challenges can still arise, especially concerning child custody, parental rights, or how long the couple was legally married before nationwide recognition.

Since the U.S. Supreme Court recognized same-sex marriage as a fundamental right in Obergefell v. Hodges (2015), Arizona courts have been required to apply the same standards to all married couples. That means the same procedures, legal obligations, and rights apply during the divorce process, whether the couple is same-sex or opposite-sex, as outlined in divorce law. However, legal questions that don’t always arise in traditional divorce cases can occur due to how and when these relationships were recognized under the law.

Table of Contents

• Same-Sex Divorce in Arizona: Equal but Not Always Simple
• Property Division and Community Property Laws in Arizona
• Parental Rights, Child Custody, and Parenting Time
• Spousal Maintenance in a Same-Sex Divorce
• Mediation and Collaborative Divorce Options for Same-Sex Couples
• FAQs About Same-Sex Divorce in Arizona
• Important Things to Remember
• How De Novo Law Can Help With Your Divorce

At De Novo Law, Licensed Legal Paraprofessional Stephanie Villalobos has over 30 years of experience in family law. She understands the nuances that can come up in same-sex divorce cases—especially with parental rights, community property issues, and spousal maintenance. As Arizona’s first licensed LP, Stephanie is proud to offer affordable legal support to families across the state during life’s most difficult transitions.

Same-Sex Divorce in Arizona: Equal but Not Always Simple

Arizona is a no-fault divorce state, which means either spouse can file for divorce simply by stating the marriage is “irretrievably broken.” This standard applies equally to same-sex and heterosexual couples. The general divorce process in Arizona involves:

• Filing a Petition for Dissolution of Marriage
• Serving the other spouse
• Waiting for the mandatory 60-day response period
• Negotiating or litigating issues like property division, child custody, and spousal maintenance

The same legal grounds apply to same-sex divorce in Arizona, and courts will not consider either spouse’s behavior when deciding property or custody matters.

However, legal challenges often stem from how long the couple has been in a legal separation. Legally married. Many same-sex couples were in committed relationships for years—even decades—before the law allowed them to get married. Arizona did not recognize same-sex marriage until after the 2014 case of Majors v. Horne highlighted important aspects of Arizona divorce law. The decision lifted the state’s ban. This can affect how courts calculate the length of the marriage, spousal maintenance, and asset division.

Additionally, if one spouse had children before the marriage or before same-sex marriage was legal, issues of paternity and legal parentage may complicate child custody disputes in a divorce case. Legal separation may complicate child custody disputes in a divorce case.

Property Division and Community Property Laws in Arizona

Arizona is a community property state. That means most assets or debts acquired during the marriage belong equally to both spouses, regardless of who earned the money or whose name is on the title.

During a same-sex divorce, the court will equitably divide all community property and debts. This includes:

• Real estate acquired during the marriage
• Joint bank accounts and retirement accounts
• Debts, such as credit cards or loans taken out during the marriage

But what if the couple lived together for years before marriage was legal? Courts only consider the legally recognized marriage period when determining what is community property. For same-sex couples who cohabited before marriage was recognized, this can result in one spouse missing out on a fair share of assets they helped build.

This is why it’s important to work with a legal professional like Stephanie Villalobos. She helps clients present evidence of joint contributions and oral agreements that may support equitable property division beyond what’s officially recorded.

Parental Rights, Child Custody, and Parenting Time

Child custody and parenting time are among the most emotionally charged aspects of any divorce. For same-sex couples, Arizona courts now apply the same “best interests of the child” standard as with heterosexual couples. However, there are additional complications to be aware of.

For example, if a child was conceived during the marriage through surrogacy or donor insemination, one spouse may not have a legal claim unless they completed a second-parent adoption or are listed on the birth certificate. This issue was addressed in the Arizona Court of Appeals case McLaughlin v. Jones, which established that same-sex spouses should have the same parental presumptions as opposite-sex couples.

When resolving legal decision-making, parenting time, and child support, the court considers:

• The emotional bond between the child and each parent
• The ability of each parent to provide stability
• Past caregiving roles
• Each parent’s willingness to support the child’s relationship with the other

Because Arizona courts often rely on legal parentage, any gaps in legal recognition can impact the outcome. Stephanie Villalobos is highly experienced in parental rights cases and can help same-sex spouses protect their relationship with their children during and after the divorce.

Spousal Maintenance in a Same-Sex Divorce

Spousal maintenance—often referred to as spousal support or alimony—may be awarded to one spouse after divorce if certain conditions are met. These include:

• A significant income gap between the spouses
• One spouse being unable to support themselves or having sacrificed career opportunities.
• A long-term marriage

Same-sex spouses often face obstacles in qualifying for spousal maintenance because of the shorter legal duration of their marriage, even when they were together much longer in practice.

Arizona courts do not retroactively apply community property rules to years before the marriage was recognized. However, with compelling evidence, a divorce attorney or Licensed Legal Paraprofessional can make a strong case for fair spousal maintenance.

Mediation and Collaborative Divorce Options for Same-Sex Couples

Divorce mediation is another option that can help same-sex couples reach an agreement without lengthy litigation. Mediation allows both spouses to discuss:

• Property division is a critical aspect of any divorce decree.
• Child custody and parenting time
• Child support or spousal maintenance

With a neutral third-party mediator, spouses can explore solutions that work for both of them without relying solely on a judge to decide. Many same-sex couples prefer this route because it promotes cooperation, privacy, and flexibility.

Collaborative divorce is another option for couples who want to avoid court. Both parties agree not to litigate and instead work with their respective legal professionals and neutral experts to resolve all issues through an agreement. Stephanie Villalobos often recommends this method for couples who are willing to engage in constructive discussions.

FAQs About Same-Sex Divorce in Arizona

Is same-sex divorce handled the same as heterosexual divorce in Arizona?
Yes. Since the legalization of same-sex marriage, Arizona courts apply the same rules and procedures to all marriages, regardless of gender.

Can both spouses claim custody if only one is the legal parent?
Possibly. If the non-biological parent is not legally recognized, they may need to petition for parental rights. Previous cases like McLaughlin v. Jones help support such claims.

How does community property work for same-sex couples who lived together before marriage was legal?
Only assets and debts acquired during the legal marriage are considered community property, unless specific legal agreements say otherwise.

Can same-sex couples use mediation to resolve their divorce?
Absolutely. Mediation is encouraged in Arizona and can help same-sex couples reach agreements on custody, support, and property division in their divorce case.

Do I need an attorney for a same-sex divorce?
Not necessarily. A Licensed Legal Paraprofessional like Stephanie Villalobos can represent you in court, draft filings, and provide complete legal services—often at a more affordable rate than a traditional divorce attorney.

Is spousal maintenance harder to get in a same-sex divorce?
It can be, especially if the legal marriage was short in the context of an Arizona divorce. However, a strong case with supporting evidence can help establish your right to support.

How long does the divorce process in Arizona take?
The minimum waiting period is 60 days, but contested cases may take several months or more, depending on complexity.

Important Things to Remember

• Arizona is a no-fault divorce state, which means neither spouse has to prove wrongdoing.
• Same-sex divorces follow the same laws as heterosexual divorces under Arizona law.
• Unique challenges may arise regarding property, spousal maintenance, and parental rights.
• Community property rules. The legal obligations apply only from the date of legal marriage in a divorce case.
• Legal parentage is crucial in determining child custody and parenting time.
• Some couples may choose to pursue mediation and collaborative divorce. Offer effective alternatives to the court.
• Working with a Licensed Legal Paraprofessional ensures affordable and personalized legal support.