When the Supreme ollourt made its landmark decision last year to legalize same-sex marriage (Obergefell v. Hodges), I was particularly curious, as a family lawyer, to see what issues might arise in same-sex divorce cases and how they’d differ from divorces involving heterosexual couples. Although I’ve helped same sex couples resolve their financial and child-related disputes over the years, it had to be done without much guidance from the laws of Texas. And, even though you would think that “a divorce is a divorce” regardless of the sex of the parties, I’ve come to realize that it’s not quite that simple.
I’m in the midst of my first same-sex divorce. It involves two women who were married nearly a decade ago outside of Texas. And though the couple ended their relationship a number of years ago, they couldn’t do so officially because Texas didn’t recognize the marriage legally until last year’s Supreme Court decision made them do so, and because they didn’t meet the residency requirements for divorce in states which did recognize the marriage and allow divorce.
And the couple might have not sought an official divorce, but my client has been wanting to marry her new partner, and can’t legally do so until she and her former partner obtain a divorce. I assume there are a number of couples in this unexpected “good news-bad news” situation as a result of the ability to marry and to divorce now in Texas.
Because this couple has been separated for a number of years, they’ve already worked through the issues that typically occupy divorcing couples: asset allocation and parenting plans. My client gave birth to a child during the marriage, and the other partner became a legal parent through adoption, so the parenting plan was their most challenging issue when they split up. They decided on a plan fairly close to 50/50 parenting time for each. And because things haven’t always gone smoothly with that plan, there will need to be some negotiation over some aspects of it.
Parenting plans will certainly be an interesting facet of same-sex divorce to keep an eye on. In the majority of heterosexual divorces, the children in the marriage are the biological offspring of both parents in the case, and both their rights as natural parents typically factor into the case. With lesbian couples, one of the parents is frequently the birthmother and the other an adoptive parent, or the child might be adopted by both parents.
The birthmother, of course, isn’t automatically granted primary possession of a child in every case, but many cases end up with parenting plans (and child support responsibilities) that are predicated on the idea of the birthmother as a primary parent. I’m curious to see how, over time and with more same-sex divorce cases, our notions of biological parent rights might change.
Will judges hearing same sex divorces be more likely to grant equal parenting time to those couples? Or will there be a preference/bias for the biological parent? Will there be more of a preference for a mother who carried the child through pregnancy than for a father who contributed the sperm as the biological father?
And how might the legal decisions around common law marriages factor into same-sex divorce rulings? If the couple met all of the requirements of common law marriage, even though they never were formally married, and have been apart for some time, do they need to obtain a divorce? If an ex-partner passed away, could there be a probate fight between the living ex-partner and the other partner’s family members, based on common law marriage? All of this seems very likely, and probably not anticipated by proponents of same sex marriage. I think there will be a messy period of litigation over these sorts of issues for some time until everyone is used to the new paradigm.
For same-sex couples in 2016, it’s a whole new world, and the ability to marry legally (and to have that marriage recognized wherever they live in the United States) provides tremendous upsides. But it’s not without its challenges – the ability to legally marry brings with it the ability to legally divorce (and perhaps the necessity), with the avenue of contentious litigation now as available to same-sex couples as it has been to heterosexual couples.
Because of the legal limbo that couples found themselves in prior to last year’s Supreme Court decision, many had to do what my client and her partner did before seeking a legal divorce – making a collaborative, principled decision about what’s best for them and their children going forward. I anticipate that the divorce process spectrum will be similar for same sex couples as it has been for heterosexual couples: some messy litigated ones, many resolved in mediation, many kitchen table resolutions, and some formally Collaborative. Although there will always be hard fought divorces, maybe the same sex community will embrace enlightened processes like Collaborative Divorce in larger numbers than heterosexual couples have. That would be a good thing for all.