Idaho LGBT Divorce

The landscape of Idaho LGBT divorce is shaped by the interplay of state statutes, constitutional provisions, and federal rulings. While divorce for same-sex couples in Idaho follows the same community property laws as opposite-sex couples, there are unique complexities when it comes to parental rights, assisted reproduction, and recognition of the marriage itself.

Understanding how Idaho law has evolved, from banning same-sex marriage to being required to recognize it under federal constitutional law,  is essential for LGBTQ+ people who are navigating divorce today.

Historical Background

For much of its history, the State of Idaho explicitly prohibited marriage between two people of the same sex. In 2006, voters approved an amendment to the Idaho Constitution that defined marriage as a union “between a man and a woman,” effectively banning same-sex marriages and preventing recognition of those performed in other states.

This legal framework began to shift in the early 2010s, as courts across the United States evaluated whether bans on same-sex marriage violated the U.S. Constitution.

Latta v. Otter (2014)

On October 15, 2014, following the Ninth Circuit Court of Appeals’ decision in Latta v. Otter , same-sex marriage became legal in Idaho. The case challenged the state’s constitutional amendment and statutes banning same-sex marriage. The Ninth Circuit ruled that Idaho’s ban violated the Equal Protection Clause of the Fourteenth Amendment.

As a result, same-sex couples were allowed to marry in Idaho, and approximately 100 marriage licenses were issued on the first day.

Obergefell v. Hodges (2015)

The U.S. Supreme Court’s ruling in Obergefell v. Hodges (2015) extended marriage equality nationwide. The Court held that the right to marry is a fundamental liberty protected under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. This ruling invalidated Idaho’s constitutional ban and confirmed that same-sex couples had the same marriage rights as opposite-sex couples.

Since then, Idaho law has had to reconcile its own constitutional language with federal law. While the Idaho Constitution still contains a ban on same-sex marriage, it is unenforceable due to federal supremacy.

Current Political Climate in Idaho

In recent years, debates around LGBTQ+ rights have reemerged in the Idaho Legislature. In January 2025, the Idaho House of Representatives passed House Joint Memorial 1, calling on the U.S. Supreme Court to reverse Obergefell v. Hodges  and restore the state’s ability to define marriage as between “a man and a woman.”

While this memorial does not have legal force, it signals continuing political opposition to same-sex marriage within the state. If Obergefell  were ever overturned, Idaho’s constitutional ban would immediately take effect, jeopardizing marriage recognition for LGBTQ+ couples. However, the Respect for Marriage Act (signed into law in 2022) requires federal recognition of same-sex marriages performed legally in any state, providing an additional layer of protection.

Same-Sex Marriage and Divorce in Idaho

Although Idaho now legally recognizes same-sex marriages, LGBTQ+ couples may encounter unique issues when filing for divorce. On the surface, the same rules apply:

• Idaho is a community property state, meaning property acquired during the marriage is generally divided equally.
• Child custody is determined based on the best interests of the child standard.
• Spousal support (alimony) may be awarded depending on the length of the marriage, income disparities, and needs.

But because same-sex couples in Idaho could not legally marry until 2014, questions arise regarding property accumulated before marriage, recognition of parental rights, and the calculation of marriage length for alimony.

Key Legal Issues in Idaho LGBT Divorce

1. Determining the Start of the Marriage

For opposite-sex couples, the marriage date is straightforward. For same-sex couples, however, many relationships predate October 2014, when same-sex marriage became legal in Idaho.

The court generally recognizes only the legal marriage date, not the beginning of the relationship or cohabitation. This affects:

• Property Division: Assets acquired before the legal marriage are considered separate property, even if the couple built their lives together for decades before recognition.
• Alimony: The “length of the marriage” is often shorter for same-sex couples, which can reduce spousal maintenance awards.

2. Property Division Challenges

Idaho law requires equal division of community property acquired during the marriage. But complications arise if same-sex couples cohabited before marriage and acquired property jointly.

Example: A couple bought a house in 2008, six years before their marriage was legally recognized in Idaho. When they divorce, the home is treated as separate property unless titled jointly. Courts may consider contributions, but the starting assumption is that community property begins with the marriage date.

3. Parental Rights and Custody

One of the most complex areas in Idaho LGBT divorce involves child custody. Many LGBTQ+ families use assisted reproduction technologies (ART), surrogacy, or adoption to build families.

• If only one spouse is biologically related to the child and the other did not legally adopt, the non-biological parent may lack custody rights in divorce.
• Idaho law does not automatically presume both spouses in a same-sex marriage are legal parents, unlike many states that apply a marital presumption.
• Being listed on the birth certificate may not be sufficient without an adoption or parentage order.

This creates serious risks in divorce proceedings, where one parent could be denied custody or visitation.

4. Assisted Reproduction and Surrogacy

Idaho law regarding assisted reproduction is outdated, written for heterosexual couples. For example, the state’s Artificial Insemination Act refers to “husbands and wives,” creating ambiguity for same-sex couples.

• If assisted reproduction occurred without following statutory formalities (such as physician involvement or written consent), courts may deny parental rights to the non-biological spouse.
• Surrogacy is legal but unregulated in Idaho, making legal contracts and pre-birth parentage orders critical for same-sex couples.

5. Spousal Support (Alimony)

Because Idaho courts consider the length of the marriage when awarding spousal support, same-sex couples often face disadvantages. Even if a couple lived together for decades, only the period since their legal marriage counts. This can result in shorter or smaller alimony awards than might be fair in practice.

6. Tax Considerations

Same-sex couples now file taxes jointly at the federal level, but divorce creates challenges. Division of property, retirement accounts, and dependency exemptions must be carefully structured to comply with both federal law and Idaho statutes.

Timeline of Same-Sex Marriage and Divorce Rights in Idaho

Divorce Issues for Same-Sex vs. Opposite-Sex Couples in Idaho

Constitutional and Legal Foundations

The legal battles around Idaho LGBT divorce are grounded in constitutional principles.

• Equal Protection Clause: Both Latta v. Otter  and Obergefell v. Hodges  relied on the principle that laws excluding same-sex couples from marriage violated equal protection.
• Due Process Clause: The Supreme Court also found that the right to marry is a fundamental liberty.
• Religious Freedom and State Sovereignty: Idaho legislators argue that marriage definitions should remain with the states. However, federal supremacy ensures that constitutional protections override state laws.

Practical Considerations for Idaho LGBT Couples Facing Divorce

1. Secure Parental Rights Early

Second-parent adoption or parentage judgments are critical for protecting custody rights.

1. Review Property Titles

If property was acquired before marriage, consult an attorney to determine whether contributions can be recognized.

1. Document Contributions

Keep records of financial and non-financial contributions, especially for long-term relationships predating 2014.

1. Plan for Alimony Challenges

Understand that recognized marriage length may reduce spousal support.

The best approach for LGBTQ+ couples in Idaho is proactive legal planning: securing parental rights, clarifying property ownership, and working with attorneys who understand the nuances of same-sex family law. Despite political opposition in some corners of the state, the legal foundation built by Obergefell v. Hodges and reinforced by the Respect for Marriage Act ensures that marriage equality, and divorce rights, remain in force.