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Some Same-Sex Marriages Unequal in Divorce

The glaring truth that we barely speak of: Same-sex couples, just like their heterosexual counterparts, need marriage under the civil law so they can get divorced! That is why, as a civil law institution, having marriage available, equally for all, is imperative. Now we have marriage equality, but because that was not always the case, same-sex couples can still find their rights confusing and unequal. The need for marriage equality for all is important,not only because of love and commitment, but also because it provides the clear slate of rights and obligations when the relationship ends.

For years we heard the religious right brow beat the public into thinking that marriage is all about a Biblical interpretation of what God wants for all humans. Let us not forget what marriage really is. The definition of marriage varies according to different cultures, but it is principally a social union in which interpersonal relationships, usually intimate and sexual, are acknowledged. However as important is the fact that marriage is a binding legal contract between two people, governed under civil law, which establishes uniform rights and obligations between two spouses, and between the spouses in relation to their children.

Until June of this year, gay and lesbian couples suffered the impact of not having marriage and divorce rights in parity with heterosexual couples, in all of the 50 United States. Marriage equality evolved first slowly, in a few States, then after the fall of The Defense of Marriage Act, in the Edie Windsor case, federal marriage rights were confirmed for same-sex married couples too. Soon thereafter more states began to acquire marriage and divorce equality - until all fifty were granted through the recent Supreme Court ruling this past June.

In my many years of mediation, I have been privy to the enormous impact of the lack of law to govern broken gay and lesbian relationships. Yet even with same-sex marriage equality now, in 50 states, the prejudice of decades of non-parity under the law continues to plague many same-sex couples when it comes to divorce. For example, many couples were only able to marry under the newly acknowledged rights after cohabiting for many years, during which time they were unable to marry. Now some of those couples may be seeking to divorce, only to have the law treat “marriages” as short term - when in fact they have been together for many years, but could not marry sooner. Short term as opposed to long term marriages, can have fiscal ramifications. For example in California, a 10 year marriage is treated as a long term marriage and can impact the duration and amount of alimony.

After a period of time living together, couples often become fiscally enmeshed and acquire property and assets together. This will not have been treated as community property retrospectively to the time before the marriage. This may well end up being defined as separate property, depending on the specifics of each case, and how property was acquired and titled. While the marriage law will clearly define what happens to assets, the couples have purchased together since the date of marriage, it is not always so clear how to characterize that which they acquired during the preceding cohabitation period.

Often these couples experienced serious imbalance in the financial and parenting aspects of the relationships and do not have the law to protect the entire period they have been together, prior to divorce. This occurs especially where one partner stayed at home as a homemaker, while the other had a career. Some relationships carried on for many years, as if marital, yet without applicable laws, and unless one had entered into written partnership agreements, or been clear on property titles, early on, proving the intention of the financial understanding in the relationship, it can be very difficult to define at the time of termination. This is where mediation can be a crucial choice when parties decide to divorce. It then becomes important to try and help the couple define their relationship in their own terms. A judge, adjudicating a case that was not settled in mediation, may insist that the law be followed to the letter, and the less fiscally entitled spouse, may lose out. Attorneys tend to take the position of the law, and rarely advise their clients to step outside of it, into what we may perceive as a more fair zone, one which acknowledges and takes into account the time before the marriage when we were unable to marry, but had to live in cohabitation. Mediation can help parties see what is fair and perhaps reach into a more equitable zone. Parties in mediaiton can have the opportunity to show integrity and fairness by acknowledging that they want to treat the cohabitation period, prior to the marriage, "as if married." I have worked on cases where couples have been very fair to each other - despite lawyers trying to talk them out being fair, because the law was not there to protect the more vulnerable of them.

I have worked with couples who have no interest in being fair and have adopted a take it all attitude. There are ways to help people in a mediated setting, to shift positions. In most of these cases litigation cannot not bring justice, because LGBT people had so many years without the ability to marry, to secure rights upon divorce, and so this can continue to plague same-sex couples.

How to help couples who do not have marriage laws from the start of their relationship to define their breakup: These types of breakups are best served by mediation, using an experienced neutral third party, who has an understanding of the issues of same-sex couples, deprived of legal clarity, through lack of equal laws, throughout their time living together.

It is the mediator who can ensure one or more of the (non-exhaustive) following, depending on the individual case:-

1. Helping parties understand the law that ought to have applied to a relationship, but did not, thereby the prejudice – which may impact one party more than another;

2. Helping parties define and reach agreement as to their intentions toward each other during the relationship;

3. Helping parties honor their commitments to each other, regardless of lack of law;

4. Creating an environment of understanding where each party validates the position of the other, thereby dispelling the assumptions that cause conflict;

5. Helping parents place the best interests of the children at the fore;

6. Ensuring smooth transitions by creating plans that include financial support and interim custody/parenting plans, pending final settlement;

7. Ensuring the parties are equally empowered through external resources;

8. Keeping the process productive and preventing unnecessary legal expenses, through early management of conflict and the avoidance of litigation;

9. Allowing the partners to control the outcome by reaching a fair agreement that creates a win/win scenario rather than a win/lose scenario. Private Courts offers mediation in Marin, San Francisco Bay Area, California, for divorce, custody, support and parenting plans: Mediator Melanie Nathan - Copyright: Private Courts, Inc. © 2015 All rights reserved.

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