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Is Gay Divorce Any Different Than Straight Divorce?

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One of the most hotly debated questions amongst my lawyer and mediator colleagues is whether or not gay or lesbian divorces differ from straight divorces, and if so, in what ways. While some folks opine that all divorces are miserable in their own unique way, I'm convinced there are numerous differences. I think this is so, even where the legal procedures for state-registered domestic partners, civil union partners, or same-sex married spouses are just about identical to the divorce procedures used by straight folks.

To my mind the differences are historic, legal, and cultural, and while every divorce has its own dynamics and presents its own particular issues, many same-sex break-ups present a cluster of special challenges that rarely arise for straight couples. Here's a quick summary of the most frequently recurring issues, based upon my experience as a lawyer and mediator in the San Francisco Bay Area.

The Historical Legacy. Until just a few years ago, gay and lesbian couples were excluded from marital law in every state in the union. California couples could register as domestic partners in 2000 but they weren't covered by marital law until 2005. Vermont civil unions and Massachusetts marriages opened up the marital law doors around the same time, but any couple that has been together for more than ten years spent a significant period of their lives outside of marital law. Lambda Legal has a great chart that summarizes the current state of affairs for same-sex couples. Check it out at: http://www.lambdalegal.org/publications/articles/nationwide-status-same-sex-relationships.html

Therefore, if the relationship breaks up, there's a strong likelihood that your legal questions will straddle the non-marital and marital dividing line. This alone can create serious areas of disagreement and uncertainty, both regarding the expectations of the partners and the legal rules that apply to their conflicts - and in some states will require that you hire two sets of lawyers, one to deal with the non-marital assets and the other to deal with your marital assets and any kids you share.

The Legal Complexities. For some same-sex partners, the inability to legally marry relegates their break-up to the murky world of non-marital law, which often involves complex theories of equitable partition, implied contracts, and partnership law. It can also create serious problems around the parentage and custody of kids. See www.NCLRights.org for more about those issues. And, even for those whose lives are covered by marital law (because they live in a recognition state and entered into a formal registration or marriage), the lack of federal recognition can create serious confusion or even blatant discrimination. There is no tax recognition of the spousal relationship, and so transfers of assets can trigger capital gains, income, or gift tax liabilities. The ERISA rules preclude the assignment of a pension or retirement benefit, which also can lead to additional taxation and enforcement problems for divorcing couples. Because of the legal complexities, fewer divorce lawyers know how to handle same-sex dissolutions, and so even finding a qualified lawyer can be a challenge.

Cultural Dimensions. While there are no scientific studies to document this trend, most observers believe that gay men and lesbians tend to organize their social and cultural lives in different ways than straight folks - and it is undeniable that traditional gender roles just don't apply to same-sex couples! As a result, the recurring issues of parentage, child custody and support, and financial obligations play out differently for many same-sex divorces. Attitudes towards sexual monogamy may be different, and conflicts over parental roles are likely to follow very different trajectories than occur with straight divorces. The underlying social dynamics of marital property law don't fit so closely with the lives of lesbian and gay male couples, and there can be a resistance to judicial involvement in the dissolution process as well.

In the end, every break-up has its own drama and its own path to resolution, but recognizing the unique features of a same-sex dissolution is crucial when it comes to navigating the lesbian or gay divorce!