Same-Sex Divorce

With legal marriage rights, civil unions, and domestic partnerships comes the reality that some couples must face divorce.  While more couples are gaining legal access to the rights afforded by marriage, civil unions and domestic partnerships there are some couples that find that they need to dissolve such legally binding relationships. 


The number of gay marriages was recorded for the first time in the 2010 census. In November 2011 the esteemed Williams Institute published a body of research which included rates that same-sex couples were getting married and divorced.Here is a summary of what these researchers concluded:


1. Nearly 150,000 same-sex couples have either married or registered civil unions or domestic partnerships, which constitutes about one-fifth of same-sex couples in the U.S. (or rather, a fifth of those who acknowledged themselves as such in recent United States Census reports).


2. About 1% of the total number of currently-married or registered same-sex couples are divorced each year, in comparison to about 2% of the total number of married straight couples. Note that the percentage of couples that get divorced eventually is close to 50%, but only 1% or 2% of them get divorced in any particular year.


3. Couples are more likely to legally formalize their relationship when marriage is an option, as opposed to a marriage-equivalent domestic partnership or civil union registration in states where only those options are allowed.


4. Nearly two-thirds of registered or married same-sex couples are lesbians, and only about a third are gay men.


5. A smaller percentage of same-sex couples register or marry in comparison to straight couples, but if current trends continue the marriage/registration rates will be similar in about ten years.


Many people have asked us for information regarding divorce and the various processes required to dissolve their legal relationships.  The laws and regulations governing same-sex divorce and dissolution of same-sex domestic partnerships are in flux and are changing as quickly as legalizing same-sex marriage, civil unions and domestic partnerships are.  To add to the confusion, some states which do not allow same-sex marriages, DO allow same-sex divorce! (ie: Same-Sex Divorce Recognized By Maryland Court Of Appeals) If you are in a situation where you need to deal with the legalities of a same-sex divorce or dissolving a same-sex domestic partnership, we strongly encourage you to contact our office today and speak with one of our experienced Family Law Attorneys who is familiar and current regarding laws affecting same-sex couples in your particular state.


When It Comes To Gay "Divorce" What Are My Options?

Currently, even in states where gay marriage is legal, gay divorce is a legal nightmare. The courts are dealing with all sorts of new issues, such as determining the true length of the partnership. If a couple was together 25 years but was only given the right to marry a few years before divorcing, courts are taking into account the entire relationship when dividing assets.  And since the Federal Defense of Marriage Act prohibits the government from recognizing gay marriage and, by extension, complicates the possibility of divorce the tax consequences are severe. In a heterosexual divorce, when you transfer property between spouses, that doesn't trigger income-tax consequences, but that's not the case for gay couples. For example, Gay divorcees aren't able to deduct alimony payments, nor are they typically able to benefit from their former spouse's 401(k). In a lengthy-enough marriage, that would be considered as marital property on divorce, and state and federal laws can permit one or both spouses to benefit from that down the line. That's simply not an option for divorcing same-sex couples because of DOMA.


The problems increase in a state that does not recognize gay marriage, as is the case with Texas. The couple can potentially be locked forever in unhappy matrimony.  DOMA not only complicates divorce, it undermines the whole purpose of using divorce to end a relationship, fairly settle a couple's financial affairs, and move on. To say that the federal DOMA throws a wrench in the process would be a gross understatement.When settled in family courts -- which have the tools to navigate the emotional and financial consequences of a breakup -- a clean divorce can often provide the best-case scenario for couples and children who must navigate a divided future. When gay couples are blocked from access to family courts, litigation involves more money and more potential anger, resulting in a harder situation for children.


One of the ironies in fighting to prevent same-sex marriage is framing it as protecting children, yet children bear the harshest costs when their parents are not allowed to marry, and that extends to the legal protections provided when married people decide to divorce. When couples are not allowed to dissolve their union in family court, they have to resolve financial and personal matters "in civil court, as if the divorce was a business dispute. In family court, they have the tools to assess responsibilities, but contract law can't handle such subtleties, and the cases end up draining family resources.  It can leave families poorer, and relationships much more embittered.


If you are facing a same-sex issue, please feel free to Contact Us and speak to one of our experienced Family Law Attorneys.  We will listen to your story, answer your questions, discuss your options, and get you pointed in the right direction.

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