Same-Sex Couples Experience Extra Pitfalls During Divorce

Holding HandsA recent article by Judith Messina of CNBC examined some of the added difficulties same-sex couples face when going through a divorce. Sean Sullivan responds to the four pitfalls Messina outlined in her piece.

Pitfall #1 – Gay divorce is not legal in your state.

Sullivan: This is problematic for same-sex couples that traveled to another state to get married. For example, let’s say an Illinois couple drove up to Minnesota to get hitched. While they are legally married in the state of Minnesota, they aren’t viewed in the same light when they come back to Illinois. This can cause numerous headaches during the divorce. Since Illinois doesn’t view them as a married couple, they can’t process the divorce.

While it is encouraging that the Supreme Court recently overturned the Defense of Marriage Act (DOMA) that made for some changes and inroads on the federal level, it still did not address issues faced by same-sex couples on a state level. Same-sex couples may still have trouble collecting federal benefits even after the DOMA defeat because they are still living in a state where as of yet, gay marriage is not legal. Illinois state laws still need to catch up with the federal laws.

Pitfall #2 – Your assets are co-mingled, but still not legally joint.

Sullivan: While they aren’t right for everybody, a prenuptial agreement should at least be considered by all parties looking to wed. Don’t view it as a symbol of ‘lack of trust’. You can even draft up an agreement that expires after a certain amount of time, or one that is only valid when certain circumstances are met. At a minimum, have a discussion with your significant other. This is especially important to consider if you and your partner have been together for a long time. A prenup can clearly define pre- and post-marriage property, which would only speed up divorce proceedings in the event that the couple decided to split.

Pitfall #3 – You cannot agree on custody.

Sullivan: Custody agreements can cause headaches for same-sex couples for a variety of reasons. First, many same-sex couples decide to adopt, which adds an extra wrinkle to the custody determination, and second, very few judges have a wealth of experience when it comes to determining child custody in a same-sex divorce. Family Law attorneys and judges always want to ensure they make the best decision for the sake of the child, and that can be hard to do, regardless of whether the couple is same-sex or opposite-sex.

Pitfall #4 – You can’t find an attorney, financial advisor, or marriage counselor with expertise in same-sex marriage and divorce.  

Sullivan: This builds off the last point, and I believe it is one of the most important things to consider.

As laws continue to change for the better, same-sex couples are entitled to more benefits, tax breaks, etc. Attorneys are attempting to decipher what all the new legislation means, because they want to provide the best services possible to their clients. As much as they try to keep up with the new laws, not all attorneys are qualified or even willing to take the extra time necessary to deal with issues that are unique to same-sex couples. Same-sex couples should find an attorney that is sensitive their needs and willing to tailor their practice to the particular challenges faced by this new area of law.

This is particularly true in Illinois where the law now allows for civil unions but not legalized same-sex marriage. I’m excited to see where the legislation goes in the future.

Related source: CNBC