Does Marriage Equality mean Divorce Equality

Does Marriage Equality mean Divorce Equality

In 2009, President Barack Obama declared June LGBT pride month, six years before gay marriage was legalized in the United States.

Rewinding to mid-19th century, divorce became the popular alternative to an unhappy marriage. Fear of the immorality of divorce decreased in the United States at the turn of the 20th century and divorce rates began to rise as women gained social and financial freedom. As modernization increased, so did divorce rates. The result was divorce law constructed around, and solely for, heterosexual couples.

When the millennial generation reached maturity, the phrase “half of marriages end in divorce” became increasingly common as the number of marriages trended downward. As it turns out, it is just about true, but only for heterosexual couples. In 2015, over 2.2 million marriages occurred with just over 800,000 divorces[1]. The same year, the Supreme Court legalized gay marriage in the landmark case Obergefell v. Hodges, requiring all states to grant and recognize legal marriages between people of the same sex.

Since Obergefell, there has been little scholarship on patterns of the dissolution of LGBTQ+ marriages, and how it may differ from a conventional divorce.

Results from the 2020 Census estimate approximately half a million same-sex married couples and half a million same-sex unmarried domestic partnerships in the United States in 2019[2]. The lack of sociological research on the divorce rates between same-sex married couples is attributable to the fact that some of the first same-sex partners to marry in the United States will be celebrating only their seventh wedding anniversary this month. Because of the short history of gay marriage in America, divorce statistics are not comparable to its heterosexual counterpart.

Same-sex couples seeking a divorce or annulment are largely subject to the same process and requirements as heterosexual couples. However, same-sex couples face a few unique challenges that divorce law has yet to account for.

In their book, LGBTQ Divorce and Relationship Dissolution: Psychological and Legal Perspectives and Implications for Practice, Abbie Goldberg and Adam Romero discuss a few instances of challenges that same-sex couples encounter when they choose to divorce that heterosexual couples do not.

One example is the division of marital assets. Many gay couples were in domestic partnerships, living together and sharing resources for years—even decades—before their legal marriage. Depending on whether a same-sex couple lives in a community or separate property jurisdiction, only the property acquired during marriage is subject to equitable distribution. This raises the question on what can be recognized as marital property and impacts the way marital property is divided in divorce.

Another example that Goldberg and Romero discuss is custody rights of the non-biological parent if a same-sex couple has a child via invitro fertilization. Because only one of the spouses can share genetic DNA with the child, the legal issue arises of whether the biological spouse can withhold custody and visitation rights of the non-biological spouse.

Gay couples may face stereotyping, stigmas, and discrimination in a family law dispute simply because they live in a conservative area or because their case is being heard in front of a judge that politically or religiously opposes same-sex marriage.

Family is a cornerstone of American life and tradition. Each June, America comes together by way of congressional legislation, corporate initiatives, and city pride parades to welcome the LGBTQ+ community after a long history of isolation.

Hopefully in the years to come, attorneys will take care to ensure that their same-sex clients are well-represented and supported through the challenge that is divorce. As a new generation of lawyers and judges rise, heteronormative legal and social standards in family law and in other practice areas will begin to adapt to the changing world as innovative legal strategy creates a space for the LGBTQ+ community under the law.

Kendall Means

[1] National Center for Health Statistics. (December 2019). “Provisional number of divorces and annulments rate: United States, 2000-2019.” CDC. Excludes data for California, Hawaii, Indiana, Minnesota, and New Mexico.

[2] United States Census Bureau.

Published by David Kowalski

Attorney David Kowalski is the founding owner of Kowalski, Wilson & Vang, LLC, handling all family law cases from divorce, paternity, child custody, termination of parental rights, restraining orders, and guardianships.

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