Pre-Obergefell Marriages & SC Family Law
Table of Contents
Frequently Asked Questions
Does South Carolina recognize my civil union or domestic partnership from another state
This is a developing area of law. After Obergefell, the argument for recognition is strong, especially if the civil union was later converted to a marriage. An experienced attorney can advocate for recognition of your full relationship history.
If we married in 2013 in another state but lived in SC, when does SC consider our marriage to have started
South Carolina should recognize the date of your legal marriage in the other state as your official marriage date, based on Obergefell’s retroactive recognition. However, this may still be contested in some proceedings.
Can the court consider the years we were together before we could legally marry
The court’s default approach is to classify property based on the legal date of marriage. But an experienced attorney can present evidence of your full financial partnership and argue for equitable consideration of the entire relationship.
If you and your spouse are a same-sex couple who married—or entered into a civil union, domestic partnership, or committed relationship—before the U.S. Supreme Court’s Obergefell v. Hodges decision on June 26, 2015, your family law situation may involve complications that most couples never encounter.
Many of these issues arise during LGBTQ divorce cases in South Carolina when couples were together for years before same-sex marriage became legally recognized.
The Obergefell ruling established marriage equality nationwide, but it didn’t create a seamless legal framework for couples who had been together for years—sometimes decades—before they could legally marry. In South Carolina, these challenges often surface during divorce, property division, alimony disputes, and custody matters.
This guide explores the unique issues facing pre-Obergefell couples and how an experienced attorney can help. For a broader look at all LGBTQ+ family law matters, visit our comprehensive guide to LGBTQ+ family law in South Carolina.
The Pre-Obergefell Timeline: Why It Matters
Understanding the legal timeline helps explain why pre-Obergefell marriages create unique challenges:
- Before November 2014: Same-sex marriage was not recognized in South Carolina
- November 2014: A federal district court ruling struck down South Carolina’s same-sex marriage ban, and the state began issuing marriage licenses to same-sex couples
- June 2015: Obergefell v. Hodges established nationwide marriage equality
Many same-sex couples in Columbia and across South Carolina were in committed, long-term relationships for years before any of these dates. Some traveled to other states—Massachusetts (2004), Connecticut (2008), Iowa (2009), Vermont (2009), and others—to get legally married. Others entered into civil unions or domestic partnerships where available.
The question is: How does South Carolina family law treat these different relationship milestones?
Property Division Challenges
South Carolina is an equitable distribution state, meaning marital property is divided fairly (though not necessarily equally) in a divorce. The key distinction is between marital property and non-marital (separate) property.
The Date-of-Marriage Problem
Generally, property acquired during the marriage is marital property, and property acquired before the marriage is separate property. For pre-Obergefell same-sex couples, this creates a fundamental problem:
Example: You and your partner have been together since 2002. You bought a home together in 2005, shared all finances, and built a life together. You married in 2014 when it became legal in SC. Now you’re divorcing.
Under a strict date-of-marriage analysis, only assets acquired from 2014 forward are “marital property.” The home you bought in 2005, retirement contributions from 2002–2014, and other shared assets could be classified as “non-marital”—even though you built them together.
Strategies for a Fairer Outcome
An experienced LGBTQ+ family law attorney can fight for a more equitable result by:
- Presenting evidence of shared financial life — Joint bank accounts, co-signed loans, shared bills, and co-mingled assets from before the legal marriage
- Arguing for transmutation — Under SC law, separate property can become marital property if it’s been so co-mingled with marital property that it loses its separate character
- Documenting contributions — Showing that both partners contributed to acquiring, maintaining, or improving assets during the pre-marriage period
- Citing equitable principles — Arguing that a rigid date-of-marriage cutoff produces an unjust result inconsistent with the spirit of Obergefell
Key Takeaway: The date-of-marriage issue is the single biggest financial challenge for pre-Obergefell same-sex couples going through divorce. Don’t accept a default analysis that ignores your years together—work with an attorney who will fight for fairness.
Civil Unions and Domestic Partnerships
South Carolina never offered civil unions or domestic partnerships. However, if you entered into one in another state—such as Vermont, New Jersey, California, or Connecticut—several questions arise:
Does SC Recognize My Civil Union?
This is an evolving area of law. After Obergefell, the argument for recognition is stronger than ever:
- If your civil union was later converted to a marriage (as happened automatically in some states), there may be arguments that South Carolina should recognize the marriage and its original date, depending on the circumstances of the case.
- If your civil union was never converted, the question is whether SC treats it as equivalent to a marriage for purposes of divorce and property division.
- Some courts have held that civil unions should be recognized under the Full Faith and Credit Clause, but this has not been definitively resolved in South Carolina.
What About Domestic Partnerships?
Domestic partnerships generally carry fewer legal rights than civil unions or marriages. Whether South Carolina will recognize a domestic partnership from another state for any purpose during a divorce proceeding is uncertain and fact-specific.
Bottom line: If you entered into a civil union or domestic partnership before Obergefell, work with an attorney who can make the strongest possible argument for recognition of your full relationship history.
Alimony and Support Issues
Alimony (spousal support) in South Carolina is influenced by several factors, including the duration of the marriage. Under SC Code § 20-3-130, the court considers:
- The length of the marriage
- Each spouse’s earning capacity and education
- Each spouse’s physical and emotional condition
- Marital misconduct (if applicable)
For pre-Obergefell couples, the “duration of the marriage” factor can be particularly problematic. If you were together for 20 years but legally married for only 8, the court may calculate alimony based on the shorter timeframe—potentially resulting in less support than the full relationship would justify.
Your attorney can argue that the court should consider the totality of the relationship when determining alimony, especially when the shorter marriage duration was the result of legal barriers rather than choice.
Parental Rights and Pre-Obergefell Families
If you had children before you could legally marry, protecting your parental rights is critical. A non-biological parent who was raising a child before the marriage may not have been able to complete a second-parent adoption at that time—and may not have realized it was necessary after the marriage.
If you haven’t already, pursue a second-parent adoption now. Even if your child is older, formalizing the legal parent-child relationship provides protection for custody, inheritance, medical decisions, and more. It’s never too late to take this step.
Navigate Pre-Obergefell Challenges with Warner Law
If you and your spouse married or began your committed relationship before marriage equality came to South Carolina, you deserve an attorney who understands the unique legal challenges you face. At Warner Law, attorney Carrie Warner has the experience to advocate for fair treatment of your full relationship—not just the years the law recognized.
We serve LGBTQ+ families throughout Columbia, Richland County, Lexington County, and the greater Midlands area.
Schedule your consultation today to discuss how pre-Obergefell issues may affect your family law matter.
This article is for informational purposes only and does not constitute legal advice. Every family law case is unique. Contact Warner Law to discuss your specific situation.
Ready to get started?
My late father, Jan Warner, was an accomplished and widely known family law attorney and nationally syndicated author in South Carolina, so this area of law runs in my blood. It is all I have ever known, and I cannot imagine doing anything else.