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Same-sex divorce poses complications for some splitting couples

Key Points
  • The legal date of a same-sex marriage might not accurately reflect how long the relationship has lasted.
  • In some cases, parental rights are not clear-cut.
  • Mediation, which tends to be less costly and more flexible, can be a better option than litigating a divorce.

Two years after the U.S. Supreme Court leagalized same-sex marriages, some couples who decide to call it quits are discovering that getting married was the easy part.

From divvying up assets to asserting parental rights, the details of divorce that can be more clear-cut with heterosexual marriages are creating complications for same-sex couples.

"The reality for many same-sex couples who are divorcing is that they had relationships in place prior to the marriage — some for many, many years," said Joyce Kauffman, principal of Kauffman Law & Mediation in Roslindale, Massachusetts. "The courts have broad discretion in these matters, and that discretion can go in your favor or not."

The 2015 decision in Obergefell v. Hodges meant that all 50 states — 13 of which still banned same-sex marriages — would be required to allow gay and lesbian couples to marry within their own borders and acknowledge marriages that originated in other states.

The landmark ruling also delivered marital legal protections afforded to heterosexual marriages, including rights related to medical decisions, certain tax benefits and access to employee benefits.

Divorce is more complicated. There are federal regulations that play a role, most of which are tax-related — i.e., the current deductibility of alimony payments and the untaxed transfer of certain retirement assets. But much of how divorce is handled happens at the state level.

The biggest sticking point often relates to when the marriage began, which can dictate how assets are divided and whether a spouse receives alimony (also known as spousal support). Generally, the longer any marriage has lasted, the more weight it carries when judges are determining how to award a lower-earning or no-earning spouse a percentage of assets and/or alimony.

Yet if a same-sex couple had lived together for 18 years before being allowed to legally marry in 2015 and decides to divorce today, whether that union began two years or two decades ago is not legally clear.

"In some states, the courts will agree to tack on prior years of cohabitating … so it's viewed as a longer-term marriage than the legal date," Kauffman said.

That backdating is not a given, however. And if one spouse far out-earned the other, the stakes are high.

"The lower earner could be completely out of luck if they leave it to a judge," said Nancy Hetrick, a certified divorce financial analyst and senior advisor at Better Money Decisions in Phoenix, Arizona.

Even when one party tries to prove their relationship has lasted long beyond the legal start of the marriage — i.e., showing a joint bank account — there's no guarantee it will work.

"Not all states are going to accept or credit those arguments," Kauffman said. "Each state has their own statutory scheme for how they handle divorce. And the law of the state — and the case law interpreting it — is what will govern divorce."

The same complications arise in child custody issues. Often, whether a child was adopted or born to one of the parties, only one person in the relationship has legal parental rights even if both are raising the child. And when the couple goes to divorce, that lack of rights can stand in the way of the nonlegal parent continuing a relationship with the child.

Marital status of LGBT Americans

Status Pre-2015 court decision, Year 1 (%) Post-2015 court decision, Year 1 (%) Post-2015 court decision, Year 2
Married to same-sex spouse7.99.610.2
Living with same-sex partner12.810.16.6
Single/Never married47.449.955.7
Living with opposite-sex partner4.854.2
Married to opposite-sex spouse14.213.613.1
Sample size4,75211,58812,832

Source: Dates: Pre-2015 court decision (Jan. 28 - June 26, 2015); Post-decision Year 1 (June 27, 2015 - June 19, 2016); Post-decision Year 2 (June 20, 2016 - June 19, 2017) Source: Gallup June 2017

Meanwhile, some divorcing same-sex couples also have to end two separate legal relationships to entirely sever their marriage.

"Some states dissolved domestic partnerships and required couples to get married," Hetrick said. "Other states decided to leave them intact. Some couples still got married, and are finding when they get divorced they have to end both unions."

The alternative to litigating divorce is mediation. Both Hetrick and Kauffman are mediators, and see first-hand how same-sex couples can overcome some of the legal hurdles through a collaborative approach to divorce.

It requires both parties being on-board, however. And depending on the dynamics of the marriage, that might not initially be an option.

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If one party in the divorce is inclined to litigate, it can be worth pointing out the higher cost of going to court, along with the control you give up.

"Who best to make these decisions about the intimate details of our familial and financial lives — us, or a judge who doesn't know anything about the ins and outs of our lives?" Kauffman said. "Unless you go to trial, which can be very expensive, a judge is not even going to hear much about you."

Mediation, which results in a legally binding agreement, encourages collaboration to reach that point. While mediators are still working within the framework of the law, they tend to be more creative in divorce agreements to ensure both parties are treated fairly.

"There's more flexibility," Kauffman said. "You can fashion an agreement that more closely suits your needs and the needs of your kids."

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