Although nationwide marriage equality only began with the 2015 Obergefell v. Hodges Supreme Court decision, divorce among LGBTQ couples does happen. Divorce between any couple is one of the most painful transitions confronted in a lifetime; but with LGBTQ couples, this process can be particularly challenging.
Local domestic law attorney Sarah Brady, a partner of Charlotte-based James McElroy & Diehl, told qnotes that the numbers just aren’t there to see how prevalent a phenomenon same-sex divorce really is.
“I imagine we’ll see that data in a few more years,” Brady said. “There are studies before , but the statistical samples were limited to individual states that passed marriage equality pre-Obergefell, or to foreign countries that had marriage equality.”
However common or uncommon, Brady emphasized, it is essential to seek help when going through a transition of this nature.
“Separation and divorce can be enormously stressful, even in the most amicable of situations,” she said. “It’s important to have a good support network, including friends, family members and counselors.”
A simple Google search reveals a plethora of options for counseling both pre- and post-divorce, a vital resource for emotional support during a trying time. Of course, psychological professionals cannot assist with the various legal issues of divorce — particularly those complicated by both spouses being of the same sex.
Legal aid is available, with a number of attorneys and law offices now specializing in LGBTQ legal issues. In the event of divorce between a same-sex couple, hurdles include premarital civil unions or domestic partnerships, child custody and even complications to property division and spousal support.
Connie Vetter, an attorney local to Charlotte, N.C. who specializes in family law and LGBTQ legal challenges, told qnotes that premarital legal partnerships are one significant complication to the divorce process. Although North Carolina never instituted civil unions or domestic partnerships, those couples who committed to one outside the state have another hurdle to seek divorce after marriage.
“That civil union is a legal bond,” Vetter said. “[If] you’ve got a civil union in one state and when marriage came along you went ahead and got married, if you’re going to get divorced, you also have to remember that civil union and go back and undo it.”
Other issues are common to all divorces, but have additional challenges to same-sex couples. Even things as everyday as division of property and spousal support can present disadvantages, when a same-sex couple had a long relationship but a short marriage.
“The law on property division values a marital estate from the date of marriage until the date of separation,” Brady said. “If an LGBTQ couple accumulated significant property before their legal marriage, this property would fall outside of the marital estate…Similarly, in an alimony action, the court is instructed to consider the duration of the marriage in determining the amount and duration of support.”
Yet the most challenging and emotional problem arises when a same-sex married couple has children. If one spouse doesn’t have a legally-recognized right to the child, the already-troubling event of custody arrangements can be still more painful.
“Currently, North Carolina only has one statute regarding children born as a result of artificial insemination, and it contemplates this procedure being used only by opposite-sex married couples,” Brady lamented. “There is model legislation from the American Bar Association that would better address the realities of assisted reproductive technology and the many ways in which families are formed, however this has not been adopted in North Carolina yet.”
Vetter pointed out that artificially-conceived children, though equally bonded with both parents, can be separated from the one whose genes the child does not share.
“Only one [parent] is biologically related to the child,” Vetter said, which automatically grants that spouse an advantage in custody negotiation. “One thing that we’re doing is advising the non-biological parent to adopt their own child. Some people do it, some people don’t. But that’s how that makes that legal relationship…if the other parent didn’t do an adoption, then their chances in court are more challenged.”
These legal issues are important to consider for same-sex couples marrying, having children, or initiating divorce. Still more significant, the emotional impact of such a transition — from married life to single life — requires attentive self-care. Counseling and a nurturing support system of friends or family are essential for anyone going through a divorce, particularly an LGBTQ couple dealing with additional legal challenges.