By Ryne Vickery, CFP
When same-sex marriage was legalized, there were (and still are) many reasons to celebrate. Sadly, a less talked about and unfortunate side of marriage equality is divorce equality. Unbeknownst to some, there is no separate set of rules for gay couples seeking to divorce. While divorce law is applied to all married couples, there are a few unique things same-sex couples should be aware of if they find themselves going down that path.
If you were wed in a legal same-sex marriage state before marriage equality was approved at the federal level, there are a couple of things to know. Before marriage equality, divorces were difficult to obtain. Couples who resided in states that didn’t recognize marriage equality were rarely allowed to get a divorce in said states. Couples who traveled to same-sex friendly states to get married found themselves struggling to get an official divorce. Additionally, same-sex friendly states require a minimum residency requirement (usually 6 or more months) to be eligible for a divorce in that state.
With legalized marriage equality, same-sex couples going through a divorce are now largely treated the same as their heterosexual counterparts. However, one likely difference is how property and assets are divided. Couples who were only recently allowed to marry, but who may have been together for 20 years or more, may be treated as though they’ve only been together for those few years they were in a legally recognized marriage. Therefore, their assets and debt accumulated after legal marriage will be considered for division, while assets and debt prior to their legal marriage may not be considered at all. This further highlights the importance of a legal document such as a pre-nuptial agreement, post-nuptial agreement or a cohabitation agreement to ensure a fairer division of assets.
Child Custody Disputes
The original framework of divorce was created for heterosexual couples, with women and men assuming their “traditional” roles in childcare. However, same-sex marriage obviously does not abide by this heteronormativity (the assumption that everyone is straight). Same-sex divorce with a child custody dispute could have a multitude of complications.
Child custody largely depends on either having a biological or an adoptive parental right. Having neither right may be problematic when an individual wants to be recognized as a parent during the divorce process. Unfortunately, some states make it difficult for the non-biological parent to establish a legal tie to the child. Therefore, it is important to ensure both parents have a legally-binding parental right to their child as early as possible.
Still, heteronormativity may remain prevalent in some instances. For example, a judge presiding over a lesbian couple’s child custody dispute may decide that the biological mother receives primary custody since she carried the child or took a longer parental leave. This may happen regardless of the role the non-biological mother shared.
Perception and Stigma
Same-sex divorce is not something frequently discussed in the media. When people think of divorce, they picture an opposite-sex couple. In turn, this can create a feeling of isolation or additional shame among a divorcing same-sex couple. They may feel as if they’re letting each other — or even the broader LGBTQ community — down. Attorneys working with same-sex couples must ensure their LGBTQ client feels comfortable and supported. Additionally, mediation may be the most beneficial route, given the lower cost and the court’s history of not being overly friendly to the LGBTQ community. It is also important for attorneys to market their divorce services to same-sex couples. Many going through the divorce process don’t know who to turn to or if a specific attorney has experience with same-sex divorce.
Overall, same-sex divorce is still a relatively new process. Even though same-sex couples face similar challenges as their hetero counterparts, the court system is still evolving on its decisions specific to the LGBTQ community.
About the author: Ryne Vickery, CFP®
As a Wealth Advisor with Buckingham Strategic Wealth, Ryne Vickery, CFP®, works with his advisory team to develop comprehensive financial life plans for professionals, retirees and near-retirees, and same-sex couples who want to align their money with their goals and values.
At Buckingham, we have advisors that specialize in LGBTQ issues. Please contact us for a short introductory conversation. We would love to help you.
Important Disclosure: The opinions expressed by featured authors are their own and may not accurately reflect those of Buckingham Strategic Wealth®. This article is for general information only and is not intended to serve as specific financial, accounting or tax advice. Individuals should speak with qualified professionals based upon their individual circumstances. The analysis contained in this article may be based upon third-party information and may become outdated or otherwise superseded without notice. Third-party information is deemed to be reliable, but its accuracy and completeness cannot be guaranteed. To the extent that this material concerns tax matters, it is not intended or written to be used, and cannot be used, by a taxpayer for the purpose of avoiding penalties that may be imposed by law. Each taxpayer should seek independent advice from a tax professional based on his or her individual circumstances. R-22-3523
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