Same-sex divorce: can a collaborative approach help?

same sex divorce

As same-sex couples across the country rushed to courthouses to get officially married after the Supreme Court ruling in 2015, some of them are now discovering that untangling those marriages may be trickier than they thought. In a perfect world, marriage equality is matched by divorce equality. However, same-sex divorce is relatively new legal territory. Many couples are having a difficult time navigating the financial and legal hurdles of separation – or even finding an attorney who is willing to help!

If you are in the process of disentangling a same-sex marriage, here are some possible obstacles to pay attention to.

Property division issues

Texas is a common law state, which means that a couple does not have to have a wedding ceremony or get a marriage license to be legally married. There are three criteria that must be met for a couple to be married in the eyes of the law: they must agree to be married,  live together, and present themselves as Husband and Wife to others. The timing of the start of the marriage is important, because it can factor into the property division.

Other financial issues

Splitting investment balances will require a QDRO (qualified domestic relations order) to help avoid some of the federal taxes on retirement plans and pensions. Ex-spouses of the same gender can be entitled to Social Security and Medicare benefits based on their former spouse’s work record, provided that they meet other requirements. In short, same-sex couples are entitled to the same benefits as traditional couples – and both will benefit from working with an experienced financial planner.

Child custody issues

Child custody and co-parenting after the divorce can get tricky for all couples, and same-sex couples are no exception. The situation can be further complicated if one or both of the parents are not the child’s biological parents. The Texas Legislature is struggling to catch up to the Supreme Court’s ruling in Windsor, and a parent who is not biologically related to a child and has not formally adopted the child may face additional challenges and need special legal advocacy.

Same-sex divorce: collaborative process can help!

The good news is that same-sex couples can benefit from the collaborative divorce process. In some ways, the fact that gay and lesbian couples are currently forging legal history is one of the biggest arguments to avoid a court battle. After all, there is a lot of uncertainty and decision inconsistency as courts are struggling to resolve these new cases.

By choosing to agree on the terms of the separation outside the courtroom, the couple is able to retain a larger degree of control over the outcomes. Because of the far-reaching financial and emotional  consequences of the decisions, going through the process with professional support makes a lot of sense. If you are facing a same-sex separation, reach out to the Brazos Valley Collaborative Divorce Alliance – we are here to support you in making the right decisions.

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