Using Mediation for Same-Sex Divorce
While federal law recognizes same-sex marriages throughout the nation, same-sex divorces can be more complicated for a variety of important reasons. Divorce involves complex legal concerns that are coupled with significant emotional hurdles – with your parental and financial rights thrown into the mix – which makes the matter exceptionally challenging, to begin with. Same-sex divorce adds an additional layer of complication, but mediation is often a great option for divorcing couples, including same-sex couples.
Having a dedicated California family law attorney – who has considerable experience successfully guiding same-sex divorces through the mediation process and toward favorable case resolutions – in your corner is in your best interest.
Many same-sex couples who have been (essentially) married for many years and who have witnessed same-sex marriage become legal believe that their domestic partnership is the legal equivalent of being married, but this is not always the case. If your domestic partnership was never registered with the state, you are unlikely considered legally married, and the path forward can be that much more convoluted.
The length of your marriage can play a significant role in relation to both the division of your community assets and the issue of alimony. The fact is that same-sex marriage has been legal in the United States for less than 15 years, but many same-sex couples have been living together in marriage-like circumstances for far longer than this, which can make it more difficult to divide community assets and assign alimony fairly. While you and your divorcing spouse can agree to a date in which you began living together as a married couple for the purposes of these divorce terms, the spouse who doesn’t financially benefit from this extension of time may be less inclined to do so.
The State of California employs what are known as community property laws in relation to the division of property. This means that all those assets that couples acquire while they are married are considered community property that must be divided between them equally in the event of divorce. Exceptions include:
- Gifts that either spouse receives in his or her name only
- Inheritances that either spouse receives in his or her name only
Those assets that each spouse brings into the marriage with him or her (and keeps separate throughout), however, remain separate property that is not divided upon divorce. In same-sex marriages, the critical line between whether an asset is separate or community property becomes that much more tenuous (in light of these marriages being legal for such a relatively short period of time).
In California, alimony is called spousal or partner support, and it is designed to help bolster the financial standing of the spouse who is hit hardest by the divorce. Generally, alimony is intended to support the recipient while he or she gains greater financial independence through further education and/or the acquisition of job skills, and one of the primary factors in determining whether or not alimony will be awarded is the length of the marriage, which can put you at a disadvantage if you are facing a same-sex divorce.
The bottom line is that same-sex divorces often face their own unique legal concerns, which may be explored more effectively through mediation.
While the parentage of children in heterosexual marriage is automatically assumed, this is not the case in same-sex marriages. If you haven’t legally established your parenthood, it can make protecting your parental rights upon divorce that much more difficult and could even jeopardize these rights. Establishing your parenthood earlier rather than later is always well advised.
If you and your divorcing spouse cannot reach an agreement regarding each of the terms that relate to your divorce, mediation may be a viable option. The basic terms of divorce include:
- The division of your community assets
- Your child custody arrangements
- Child support
Because same-sex divorce can complicate the bulk of these issues, reaching mutually acceptable terms can be more challenging, but proceeding to court is generally considered a last resort (because you relinquish your decision-making power to the court in the process). At mediation, you and your divorcing spouse – along with your respective divorce attorneys – will meet with a professional mediator to explore your best options as they relate to the terms of your divorce – and to your parental and financial rights.
Same-sex divorces come with additional complications, but a seasoned California divorce attorney who has an impressive range of experience handling same-sex divorces is standing by to help.