Gay Divorce? Same-Sex Break-up

Provided by ACCORD Mediation, Arbitration and Conflict Resolution, LLC

The topic of same-sex marriage is a significant "hot-button" issue for policymakers and judicial circuits at the local, state, and national levels. While the determination of procedure has remained in the domain of legislatures and courthouses, same-sex couples have continued to create long-term relationships that have resulted in intertwined lives and assets. Consequently, there has also been an increased need for assistance and direction for couples during same-sex partnership dissolutions.

While a wealth of legal guidance exists on the dissolution of heterosexual marriages and partnerships (common law, palimony, etc.), there is very little information on the rights and processes involved with gay divorce and same-sex break-ups. Every state has its own interpretation, but the overwhelming consensus is that a partnership that cannot become a marriage does not have the rights of a marriage. Even Canada, which has made same-sex marriage legal in numerous provinces, initially failed to write the necessary legislation to deal with gay divorce.

Same-sex couples often have relationships that empirically mirror those of married couples. Depending on the state, this can include shared homes, automobiles, bank accounts, benefits plans, and even children. However, if the relationship ends, there is little guidance for dissolutions without prior written contracts outlining the rights of each party. As with prenuptial agreements, many same-sex couples avoid breaching such a delicate subject while the relationship is in good standing.

As a result, couples are left with three options to aid in finalizing their break-up: 'Without Help', with ''Divorce Attorneys', and with a 'Private Mediator'. The pros and cons of each option are listed in the table below:

Pro

Con

Cost

Without Help

  • Least costly approach
  • Maintain privacy
  • 'Cut and Run' may be easier for some
  • No legally binding written agreement
  • Can miss unconsidered details
  • Communication and compromise can be difficult
  • No balance of power

Unknown

Divorce Attorneys

  • Experienced guidance
  • Legally binding agreements
  • Each side emphatically represented
  • Each side receives a personal focus on legal rights/options
  • Distanced negotiations
  • Sometimes very expensive
  • Nothing to file with court, so high costs could be considered unnecessary
  • Adversarial extensive process and time
  • May still use a mediator

$$$

Private Mediator

  • Experienced guidance
  • Legally binding agreements
  • Focus on compromise and shared resolutions
  • Usually completed in one day
  • Low cost option and fees split between parties
  • Either side can end mediation
  • No guarantee of agreement
  • Mediator does not act as an attorney or financial advisor

$

While the country continues to struggle with the legal definitions of long-term same-sex relationships, their presence cannot be denied. As with heterosexual unions, couples will continue to build lives together only to find that the relationship may not last. How the assets, interests, and debts of the partnership are distributed requires careful understanding of the options that exist. Only then, can the best resolution be determined and emotional closure achieved.

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