What Happens When Gay or Lesbian Couples Divorce?

Divorce can be a painful, confusing process as a couple tries to separate the life they have built together. Issues such as custody, visitation, property distribution and spousal support are not always easily addressed, leaving the parties feeling frazzled, confused and even angry with the whole process.

Luckily, the states have laws and resources in place to help a divorcing couple work through the process and come to an agreement. But what happens when the couple is gay?

Ironically, there are few resources to help gay and lesbian couples through a divorce, despite the size of the divorce industry itself. This is largely due to the fact that the moststates’ laws in the United States do not yet accomodate gay marriage. Most states do not recognize gay marriage at all and those that do grant limited rights and benefits. Even the federal government has disavowed the concept by passing the Defense of Marriage Act (DOMA) .

Yet, even in spite of the lack of laws available to govern gay divorces, the fact remains that gay and lesbian couples do exist and as with heterosexual couples, they do sometimes decide to divorce.

Some of the issues they face are common, such as property division and spousal support. Others are not so common. Gay parents for example often deal with a unique custodial issue in that one parent is often not the legal parent, despite the emotional relationship with the child. This can leave little recourse when it comes to seeking joint custody or visitation with the child after the divorce. Also see: Drafting a Parenting Agreement after divorce.

Additionally, because most states don’t recognize such a union, the courts will not provide for a legal divorce. This means that even the most common divorce concerns are not easily addressed in a family law court.

For these reasons, it is important for gay couples to document their union with legal contracts. These contracts can address everything from decisions over medical treatment to alimony and property division in the event that the marriage doesn’t last. Similarly, a legal adoption would provide both parents with rights over the child which could then be enforced if the marriage later ended in a divorce.

In the event that these documents are not already in place, gay couples do have the option of seeking mediation to help them resolve issues in dispute when the relationship ends. A legal agreement could then be drafted, outlining the provisions of the breakup in the same fashion of a divorce decree.

Because the laws governing gay marriage vary, you should learn more about the laws in your state. Some states do provide for domestic partnerships and civil unions which may or may not afford some rights as a legal spouse.

Also See: Book Review: The Complete Gay Divorce

Same-Sex Divorce FAQ’s:

How is alimony and property division handled in a same-sex divorce?