The Latest News August 2018

Lesbian and Gay Divorce

Posted On: August 29, 2018

WHY LEGALIZED MARRIAGE HAS NOT SOLVED ALL ISSUES FOR THE LGBT COMMUNITY

You Do not want to be the first case the Courts interpret on these challenges

 Although the LGBT Community has now been afforded many of the rights enjoyed by the heterosexual community, the legalization of marriage has not solved all the issues and has created different challenges and issues in the event of a divorce. For traditional families and couples, divorce has been a process that is relatively straight forward since it has years of history both in legislation and judicial interpretation.  For the Lesbian and Gay community, we face a great deal of uncertainty and ambiguity since the legalization of marriage is so new for our community and there has not been much case law interpreting divorce of Lesbian and Gay couples. 

 Many couples in the LGBT community have been together for many years sometimes decades before legalized marriage was an option. 

So, what does this mean in the event of a divorce?  Well, the law and the Courts will only look at a marriage, including marital assets and debts, from the date of marriage to the date of divorce.  This means the law DOES NOT consider the relationship that existed prior to the legal marriage.  So where does that leave the lesbian and gay couples that have been a couple for many years before they married and have created and implemented their financial plan for the future.

  From a legal and Court perspective, the Courts do Not address assets and debts that were acquired prior to the marriage.  This creates a unique challenge for lesbian and gay couples that have had a lengthy relationship before a formal marriage.  The courts have yet to address these challenges and you do not want your marriage to be the case of first impression for the courts to decide.  It is very important that you have a seasoned divorce attorney on your side.  It is my opinion that the attorney should have experience within the Lesbian and Gay community to truly understand the issues that face our community.

It is also why I strongly feel that alternatives to divorce litigation such as Collaborative Divorce and Mediation which are extremely important to the Lesbian and Gay community.  These alternative methods let the parties to the divorce customize their agreement and the dissolution of their marriage based on the facts and circumstances of their relationship. 

 There are also many things that the community can do to protect themselves and avoid the event of a nasty divorce.

For all lesbian and gay couples, it is important that they address this challenge. So, what should you do to avoid these challenges? 

  • Create a domestic partnership agreement or prenuptial agreement that address all issues in the event of a divorce
  • Create a post nuptial agreement that address all issues I the event of a divorce
  • If divorce is on the horizon be sure to choose an alternative method to obtain your divorce out of Court such as Mediation or Collaborative Divorce. These methods will keep your lives assets and interests out of the Courts reach.
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