Divorce is never easy, but in the case of same-sex and LGBTQ couples, it can be complicated considerably by legal landmines.
“We have the exact same split-up rates as straight couples,” said D’Arcy Kemnitz, an attorney and executive director of The National LGBT Bar Association, a nonprofit based in Washington, D.C. “You just want to begin a new relationship without being wed-locked. You want to be able to start over like straight couples. It’s important to have our relationships terminated properly to protect ourselves and our children.”
- Obtain legal counsel.
- Dissolve all prior relationship statuses.
- Educate themselves on relationship recognition laws in their home state to mitigate risk.
Because individual states treat civil union and domestic partnership dissolution differently, couples seeking to sever ties should seek out legal counsel with a local attorney who is familiar with their specific state laws, said Emily Haan, a family law attorney for the National Center for Lesbian Rights (NCLR) in San Francisco, which provides free information and counseling to the lesbian, gay, bisexual and transgender community.
“It’s really very state specific so I highly recommend couples speak to a local practitioner for advice,” she said.
The NCLR provides a summary of same-sex relationship status legislation for each individual state on its website.
Rules on same-sex divorce may differ depending your relationship history
While gay and lesbian married couples can file for divorce with relative ease, those who entered into a civil union or domestic partnership before marriage was an option are sometimes forced to contend with a tangled web of state laws that make severing ties a challenge at best. (Related: Alternatives to divorce)
Others who inadvertently fail to dissolve all their relationship statuses (with the same partner) at the time of their divorce put their financial future potentially at risk if they ever remarry.
But the stakes are arguably highest for same-sex parents who are looking to split, as many states still grapple over the legal definition of what constitutes a “parent” in the eyes of the court.
Indeed, the fight for marriage equality may have ended with the landmark 2015 Supreme Court ruling that legalized gay marriage across the country, but the struggle to dissolve same-sex unions remains real for many couples, said Haan, in an interview.
“Many of the issues related to the dissolution of civil unions and domestic partnerships were resolved after 2015, but some serious issues still remain,” she said, noting several states still require nonresident same-sex couples who were married or joined by civil union there to meet multiple requirements before a dissolution of their union will be granted.
If you don’t meet those requirements “you could be stuck,” said Haan. “Attorneys have to come up with creative arguments to get the court to dissolve their clients’ unions.”
Many other states have relaxed their residency standards for divorce and dissolution proceedings since the landmark 2015 Supreme Court ruling that opened the door to marriage equality. Others automatically converted prior legal unions to marriage status, affording same-sex couples the same rights and responsibilities as their heterosexual peers — including the right to divorce in any state.
Undissolved unions can sting
Because of the way in which marriage equality laws evolved, many gay and lesbian couples today have multiple relationship statuses. They may have started with a civil union in one of the more progressive states that allowed it, for example, were later joined as domestic partners, and finally tied the knot in their home state when same-sex marriage was made legal.
That no doubt made for a lot of celebrating at the time, but it can complicate a divorce proceeding considerably today, said William Singer, an attorney who represents LGBT clients with Singer & Fedun in Belle Mead, New Jersey.
In many states, he said, the courts are still struggling to resolve which relationship status takes precedence for the purposes of dividing property in a divorce settlement. Do they factor in property that was jointly owned as far back as the couple’s first legal union, or back to when marriage became legal in their state? (Related: The role of life insurance in divorce)
“An argument could be made both ways,” said Singer, noting one of his cases involved a couple who was joined in a civil union in Kentucky in 2003 and later moved to New Jersey. They got married in 2013 when New Jersey legalized same-sex marriage, but are now seeking a divorce. “Do you start to effect equitable distribution in 2013 or in 2003? It becomes a fact-sensitive analysis, which is something most different-sex couples don’t have to go through.”
Having multiple relationship statuses can also come back to bite same sex couples who file for divorce, but forget to dissolve prior statuses at the same time, said Haan. If their civil union or domestic partnership remains intact, they could be prevented from remarrying down the road, or be held legally responsible for making medical decisions for their ex in an emergency situation decades later.
Worse, any future marriage could be deemed null and void, which might jeopardize that individual’s position in a division of property — or child custody — in the event that marriage also ends in a divorce. “There are a number of ways that a relationship status could come back to haunt you if you don’t dissolve it legally,” said Haan.
Dissolving one’s marriage status, she adds, does not automatically dissolve the others, unless it is included in the order. The court may be able to dissolve marriages, domestic partnerships, and civil unions all in the same proceeding, but the onus is on same-sex couples to disclose those statuses and ensure that they are dissolved.
The parent trap
The risk of divorce is amplified further still for same-sex parents who seek to retain shared custody of their kids, as “marital presumption” laws become the latest legal battleground.
According to Haan, each state has its own definition of “marital presumption,” which generally indicates that any child born to a marriage is presumed to be the legal child of both parties. “But we have been facing a significant amount of push back in certain states about whether that presumption applies to and creates legal parentage for same-sex couples. It’s an ever-changing situation.” (Related: The changing notion of a family)
The matter is particularly challenging in cases where only one party is a biological parent — for example, lesbian couples in which one spouse was artificially inseminated, or gay couples in which only one of the husbands provided genetic material to a surrogate. Where the courts are concerned, establishing parent rights based on a biological link is more complex still for lesbian couples in which one woman was artificially inseminated with embryos from her partner and a sperm donor, said Singer.
“The nonbiological mom or dad may not be protected in a divorce,” he said. “They may be thinking that because the child’s birth certificate has their name on it that they are protected, but the courts in some states have ruled that birth certificates cannot create or terminate parentage.”
Because marital presumption laws are still being defined, Haan recommends same-sex parents ensure that the nonbiological parent complete adoption paperwork.
“If you are going through an amicable separation, we recommend the party who is not biologically related to the child always do an adoption as a stepparent or second parent, depending on the circumstances,” she said.
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This article was originally published September 2016. It has been updated