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!
Linda Gryczan
Mediation Works
Gay couples have had commitment ceremonies for many years, which, to many of them is just as binding as a legal marriage. So there is such a thing as gay marriage, and such a thing as gay divorce. Even for couples who aren't married, break-ups in general are not "every day" occurrences, and can be just as complicated and devastating as divorce.
Yeah. Gay marriage and Gay divorce are thriving unexploited markets ignored solely because of bigotry. Think of the potential profit margin for all the publications, advertising, wedding planners, travel providers, reception halls and divorce attorneys that is missing from our anemic economy.
As capitalists we should be ashamed.
Yeah. Straight divorce is legal. It exists.
Nice logic. Would you compare a single raindrop to the Pacific Ocean?
Other than that I can't see any differences in straight vs gay marriage other than the fact that we had to jump through hoops of fire to get married so there may be less gay divorce as gay folks who are married truly want to be and have thought long and hard about what love and commitment really means.
My wife and I had to go 1,000 miles to Canada to wed (my mum would NOT have accepted some "commitment ceremony" and neither would we). Since the closest place to her with marriage equality (she was 91 and disabled, so plane travel was pretty much out) was Canada, we went there to marry. If we had had marriage equality in this country, we could have married in Michigan where she lived her entire life. Nope, haters had to pass an amendment to the state constitution (can' have those icky gays marrying in Michigan!). It was enough of a hassle all around that we thought seriously. But we both wanted legal marriage so we went for it. Anyhow, we both take our marriage and handfasting vows very seriously, so I don't see divorce in our future.
At this point we have quite a wall of civil union/ domestic partnership certificates...I look forward to the day that we only need one.
As to divorce, it we ever even thought of it, we would have to go through legal divorce proceedings in several states to undo each individually.
A lack of children could be beneficial in that the finances are less strained and there are fewer parties to deal with come divorce time.
In either case though the real cultural issue is with the stigmatization of singlehood. This is on the decline, but there are still many people of the older generation (over 30) that believe that a union is required in long term relationships.
What about half of the straight couples that end in the divorce? Should we just ban marriage? Love is a gamble. People change and nothing in life is a sure thing except for death and taxes.
Two negatives or two positives joined together do not bind.
Now . . let the retribution begin . . .
The good news is that we see a lot of very caring gay couples who are getting divorced (and hetero too) and my anecdotal observation is that they also feel like they owe it to the community to behave like mature adults during the process.
Diana Mercer, co-author of Making Divorce Work and Your Divorce Advisor
Would that this were the case with all couples, especially where there are children involved!
That didn't happen with Hollywood's biggest gay divorce to-date.. the Etheridges.
(Admittedly they aren't divorcing but seeking dissolution of partnership).