Gay Divorce?

May 8, 2006

The topic of same-sex marriage has recently become a major “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. Consequently, there has also been an increasing need for assistance and direction for couples during same-sex partnership dissolutions.

While there is a wealth of legal guidance on the dissolution of heterosexual marriages and partnerships (common law, palimony, etc.), there is very little information on the rights and processes involved with 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 same-sex divorce.

Same-sex couples often have relationships that empirically mirror married couples. Depending on the state, this can include shared homes, cars, bank accounts, benefits plans, and even adopted 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 proceed with in finalizing their break-up: ‘Without Help’, with ‘Divorce Attorneys’, and with a ‘Private Mediator’. The pros and cons of each option are listed 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	???
Divorce Attorneys	Experienced guidance Legally binding agreements Each side emphatically represented Each side gets a personal focus on legal rights/options Distanced negotiations	Can be 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 resolution Usually completed in a 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 partnerships, their presence cannot be denied. As with heterosexual unions, couples will continue to build lives together only to find that the relationship was not meant to last. How the assets, interests, and debts of the partnership are distributed requires careful thought and understanding of the options that exist. Only then, can the best resolution be determined and emotional closure achieved.

Matthew McCusker

Matthew McCusker is the founder of ACCORD Mediation, Arbitration, and Conflict Resolution. He mediates in the Atlanta area and throughout the State of Georgia with areas of focus including: domestic, civil, criminal, and even juvenile conflict. Additionally, as a conflict resolution consultant, Matthew assists many corporations with a variety of… MORE >