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Gay couples find divorcing has traps

Judith Messina, Special to CNBC.com
Wednesday, 16 Oct 2013 | 8:00 AM ET
Malcolm Park | Photolibrary | Getty Images

When Massachusetts made same-sex marriage legal in 2009, Ron Paul (not to be confused with the politician) and his partner of 18 years traveled from their home in Virginia to the Bay State to tie the knot.

Last February, after four years as a married couple, they split. Now, Paul wants to get on with his life.

He can't.

Even though gay marriage is now legal in 13 states and the District of Columbia, gay divorce remains a difficult matter. The first and biggest pitfall that awaits homosexual couples seeking a divorce is that they may not be able to get one.

In states like Virginia that don't recognize same-sex marriage, gay couples can't get a divorce. And to obtain a divorce in Massachusetts, Paul or his erstwhile spouse would need to establish legal residency there.

(Read more: Same-sex marriage ruling, a financial game-changer)

Thousands of gay couples may face similar difficulties.

Thirty-seven states still don't recognize and, in some cases, ban same-sex unions. They won't grant a divorce for a marriage that, by their rules, never happened. Meanwhile, some states where gay marriage is legal may impose onerous requirements for divorces.

"If you're getting married and have to go out of state, you'd better be sure you're going to stay married," said Jennifer Hatch, president of Christopher Street Financial, a New York financial advisory catering to same-sex couples. "A contested dissolution is going to be treated very differently depending on where you are and the judges involved."

Same-sex couples, so far, divorce only half as often as do heterosexual couples, according to a study by the Williams Institute, a Los Angeles think tank that studies legal issues related to sexual orientation.

That may change as same-sex marriage becomes more common. As more gay couples divorce, the laws will likely catch up—eventually, experts say.

It can't be soon enough for Paul. He owns and operates three beauty salons and a cosmetology school in Virginia, which means he can't move to Massachusetts, even for a limited time. He's also met someone else.

"At some point, I would like to marry him, but I can't," Paul said.

(Read more: Before Talking Marriage, Talk Money)

Nobody wants to end up in divorce. But if you plan to avoid the following legal and financial pitfalls, your path through the process is likely to be smoother—which is in everybody's best interest.

Pitfall #1: Gay divorce is not legal in your state. Marry in one of the states or other jurisdictions that grant divorces without an onerous residency requirement; these include California, Delaware, and Minnesota, as well as Washington, D.C.

Before the marriage, financial experts suggest writing a prenuptial agreement to settle property and other matters in advance. Every state recognizes such agreements, and even if you can't divorce or face a waiting period, you can settle ancillary issues, including financial matters, and get on with at least part of your lives.

A postnuptial agreement can work, too. Check to see the requirements in your state.

Pitfall #2: Your assets are co-mingled but still not legally joint. A couple that marries after a long period of living together and then decides to divorce may face a difficult property settlement. Because it was impossible for gay couples to legally marry until quite recently, many find themselves in that situation.

Again, a pre- or postnup will help. A written agreement that details who owns what and who gets what in the event of a split is essential, especially if one or both parties to the marriage have substantial assets.

"All money and property issues can be settled," said Frederick Hertz, a San Francisco attorney who is an expert on same-sex couple legal issues. "You don't need a lawyer, court, or judge."

Pitfall #3: You cannot agree on custody. Consider the case of New York residents Mercedes Counihan and Molly Bishop, who married in Connecticut in 2009. In 2010, following a meticulous search for a sperm donor who shared Counihan's biracial heritage, Bishop gave birth to their son.

Two years later, the two women are battling for custody.

(Read more: Gay couple's bankruptcy filing challenges)

Counihan's name is on the child's birth certificate, but she did not legally adopt him, a move that lawyers say would have protected her rights as a parent. Counihan said she has now spent $100,000 arguing for those rights.

"When the relationship breaks up and the nonbiological parent wants to share custody [but] the biological parent says no, it's a huge problem," said Joseph Milizio, managing partner at Vishnick McGovern Milizio in Lake Success, N.Y., and head of the law firm's LGBT practice.

If you want to avoid a damaging scenario, have the nonbiological parent legally adopt the child at the time of birth.

"The number one thing is to do the second-parent adoption," said Michelle Kahn, an attorney at New York-based Kahn & Goldberg and an expert on gay and lesbian family law.

"Whether the marriage is recognized or not, that adoption is going to be recognized," she said. "[Non-same-sex marriage states] may not like it, but they're going to recognize it."

(Read more: Gay investor seeks couples' equality)

Pitfall #4: You can't find an attorney, financial advisor, or marriage counselor with expertise in same-sex marriage and divorce. Organizations such as Lambda Legal and the National Center for Lesbian Rights can provide information. If you're in a non-same-sex-marriage state, find attorneys who specialize in family law and advisors who handle complex issues, such as estate planning.

When it comes to therapists, if you can't find one with experience in treating same-sex couples, interview them up front.

"[Find out] their ideas about same-sex couples," said Michael LaSala, a therapist at the Institute for Personal Growth in Highland Park, N.J., and an associate professor of social work at Rutgers University. "And along the way, couples may need to educate the therapist."

—By Judith Messina, Special to CNBC.com

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