by Marta J. Papa
Family law for the LGBTQ community changed substantially with the June 26, 2015 landmark decision of the United States Supreme Court in the case of Obergefell v. Hodges, where the Court held that every state must allow and recognize same-sex marriages. While there is now no difference before the law whether a married or a divorcing couple are same-sex or different-sex , the newness of this situation means that helping professionals should inform themselves and encourage same-sex couples to inform themselves about the legal rights and ramifications of what, until recently, had been a societal status in which they had no stake. Same-sex couples have some catching up to do.
LEGAL IMPACT OF THE RULING
Marriage laws still differ from state to state, but married same-sex couples in a given state have the same legal benefits and responsibilities as married heterosexual couples in that state. They now enjoy the usual spousal benefits, including the rights to own property jointly, take a tax deduction through filing returns jointly, extend healthcare coverage to a partner as a dependent, and be viewed and empowered as next-of-kin should the other spouse become unable to make medical or end-of-life decisions. Denial of any of these rights because of sexual orientation is now considered discrimination and is against the law.
However, predictably, there has been a cultural backlash against this new legal right for same-sex couples. As of this writing, more than three-quarters of all state legislatures have seen in excess of 200 bills filed which would give anyone the right to deny goods or services to same-sex couples if providing them would violate their personal religious convictions. Most of these bills have been defeated, but others that have passed, as in North Carolina, have sparked lawsuits now making their way through the court system and which ultimately may be decided by the U. S. Supreme Court. My advice to LGBTQ individuals, therefore, is to get informed, stay informed, and be wary. Societal attitudes toward same-sex marriage are liberalizing fast, but not at the same rate across the entire country. Be aware that in some states, lawmakers’ attitudes have yet to catch up to the more inclusive attitudes of the populations they represent.
SEPARATION AND DIVORCE
Along with gay marriage come gay separation and gay divorce. If a married couple wants to end the relationship, they must do so formally, following the “Dissolution of Marriage” statutes in their state. They can’t just break up; they must actually file for divorce. Married couples, after all, have done more than declare their love before the world; typically they have intermingled assets, shared a home, made one another beneficiaries on insurance policies and investment accounts, and so on. When a married couple splits up, all of that must be formally undone. This is a major component of the divorce process.
WHICH DIVORCE PROCESS IS BEST?
If the couple has any disputes over property, child care, or maintenance, then the dissolution requires legal assistance. There are several ways to do this. In my opinion, after helping more than 8,000 couples divorce, the goal for anyone who wants a divorce should be to stay out of court. Once the case comes to the courtroom, the spouses have relinquished all control over their future. There is no guarantee whatsoever that the judge will be fair-minded or the outcome will be just. The biggest mistake made by divorce clients is assuming that they will ‘get their day in court’ and the judge will inevitably see things their way. A divorce trial is always a gamble: the personal stakes are very high, and the outcome is almost always permanent, irrevocable, and very much influenced by the judge’s own values, personal baggage, and prejudices. Same-sex couples are particularly vulnerable in this regard.
Mediation, without question, is the more respectful, amicable and cost-effective way to dissolve a relationship, and the best for the emotional welfare of children when there will be shared parental responsibility following the divorce. Importantly, mediation also keeps control of the process in the hands of the divorcing partners. They decide everything together. Nothing goes in the final document unless both have agreed to it. The role of the mediator is to help both partners focus on the future and negotiate with one another to resolve any outstanding disagreements about child care, property, and maintenance. These decisions are made in the privacy of the mediator’s office, with the mediator explaining all the options available to them so that each can make informed choices and bargain constructively to create the best post-divorce future. After all issues are resolved, which typically takes about three sessions, the mediator summarizes their agreement in a document that is presented to the court for approval. In most cases, neither party ever has to appear in court. Once the judge signs off on the agreement, they are divorced, and the details remain private. This contrasts with a divorce trial, where the court reporter takes down every word, and everything, including supporting documentation, which can reveal personal matters and financial information — becomes part of the public record.
In addition, mediation allows the couple to move through the divorce process quickly and at a fraction of the usual cost of hiring two attorneys to argue for them. If joint custody of children is part of the plan, mediation has the enormous benefit of spelling out in detail just what each parent’s future responsibility will be, which goes a long way toward avoiding conflict in front of the children. Very often the negotiating skills learned by the partners during the mediation process also help them keep their future interactions peaceful. This is a huge gift to the children, who can stop worrying about their parents and adapt to the new normal.
For more information about same-sex rights and responsibilities, contact a local LBGTQ Resource Center and/or a professional family mediator or a lawyer in your area who specializes in family law.
Marta J. Papa is a professional family mediator, litigator, and mediation trainer in St. Louis, Missouri. She is a nationally recognized speaker and educator on divorce mediation and other ways of helping clients resolve family disputes outside the courtroom when possible. As the owner of her own firm, she has dedicated her practice to only family law matters for the past 25 years. Marta combines her knowledge of family law with her post-graduate degree in Marriage and Family Therapy from the prestigious Menninger Institute of Psychiatry to help clients navigate the emotional as well as legal aspects of divorce. You can reach Marta at [email protected] or find more information on her website, www.consideringdivorce.com.