Having a successful marriage is a difficult proposition at best. Marriages can be filled with the same duality of ups and downs that we face as individuals going through life. Gay marriages offer the same pendulum of give and take, compromise and communication as their heterosexual counterpart, but they too more often than not end up in divorce. And same-sex divorces might be even tougher these days than the marriage themselves.
This is due in large part to the fact that gay marriage is legal in only thirteen (13) states in our union and the District of Columbia. So if a same-sex couple lives in one of the other 37 states, and wants to marry, they have to go to DC or one of the legal 13 to marry, then they return to their home state to live happily ever after, right? Well, it’s not always that simple. Many times, these couples face the realities of a marriage gone awry, and the parties decide to part and go their own ways. But how do they divorce legally since their state doesn’t even recognize their marriage as being legal in the first place?
Thousands of couples potentially face this issue right now. To obtain a divorce they would need to go back to a state that recognizes their legal right to marry and then establish legal residency there. Or the state might impose other onerous requirements for their divorce.
Recent statistics indicate that same-sex couples divorce at half the rate that heterosexual couples divorce. That figure is expected to rise as more gay couples seek divorce, and the states’ laws likely catch up with that rise.
The key to all this is to be smart. And here’s four tips on how to be smart regarding same-sex marriages and divorce:
1) Before marriage, consult an experienced family law attorney When it comes to marriage and divorce, whether same-sex or heterosexual, there truly is nothing more important than a professional who is looking out for your best interests. Certified family law specialists are just that: family law specialists. Find one who can handle complex issues like estate planning and custody. There are also organizations such as Lambda Legal and the National Center for Lesbian Rights who can provide information.
2) Consider creating a pre-nuptial (or a postnup, which is recognized in most states) agreement. A written agreement between wedding parties can be important to help detail ownership of assets accrued by and between the parties during their relationship. The truth is, all money and property issues can be settled without the need of a court or a judge. All the parties have to do is sit down and agree to who owns what and who gets what in case of a split. Such agreements are legally recognized in every state. And even if the state you’re living in doesn’t recognize same-sex marriages, ancillary matters such as financial issues can be settled which would allow the parties to move forward while awaiting the legal drama of their divorce to play out.
3) If possible marry in one of the states or other jurisdictions that grant divorces without onerous residency requirements. California is one of those states. So are Minnesota, Delaware, and Washington D.C.
4) Regarding potential child custody issues, if either party should have a child during wedlock, the non-biological parent might consider legally adopting the child at the time of birth. Even if the same-sex marriage is not legally recognized by that state, the state will recognize the legality of the adoption.
Again, as in any legally binding relationship, homework and due diligence are important. Know what you’re doing before you enter into legally binding contracts such as marriage. Consult with a family law specialist. Know the laws of the states you’re dealing with. Be smart. And build a legally and fundamentally strong foundation that will bring peace to you and your soon-to-be family.
