Global Family Law Services

Property Division in Divorce – The Hurdles of Same-Sex Marriages

| Jul 29, 2013 | Same-Sex Marriage

There once was a couple who during a beautiful ceremony in a friendly locale swore to be together until death pulled them apart. After their marriage they went back home and purchased a house and a couple of cars. They took trips and bought furniture. This couple even had kids and spent more money than they ever dreamed they could. And then one day, they decided they no longer wanted to be together. So they divided all the property that they had accrued and determined who was going to take what debt. They decided where the kids would live and when and with whom. There was no animosity; the decision to split had been a joint one and they were still friends. But what appeared to be a simple solution was not so simple for this same-sex couple. Although they were married in a state that recognizes same-sex marriages, and were in fact “legally married,” their home state considered them to be nothing more than roommates.

Simply put, it is problematic for same-sex couples living in states that do not recognize same-sex marriages. All those “benefits,” like the ability to divorce, that are given to heterosexual married couples do not exist. So what are the options for couples who find themselves in this situation?

To begin with, same-sex couples who are married in a state that recognizes same-sex marriages but live in another state should be proactive and enter into a Domestic Partnership Agreement. While this type of agreement is also useful for heterosexual couples who are not married, the Domestic Partnership Agreement also acts as a Prenuptial Agreement for those who are not recognized as being married. With this document the couple can outline what will happen in the unfortunate event that they wish to sever ties.

The couple described above did not have the foresight to enter into such an agreement. Luckily for them they werein complete agreement regarding issues such as property division, child custody, support, and retirement benefits. This couple is able to take the private mediation route and enter into a Conciliation Agreement. This contract contains all the terms that are agreed upon by the couple when dissolving the relationship.

Unfortunately for couples who did not enter into a Domestic Partnership Agreement and are not in any way amenable to a division, the road to “divorce” or separation as the case may be, will be a little muddier. Who will determine who keeps the house, the car, or the kids? No court order will determine what portion of your retirement fund your partner is entitled to. No judge will tell you that you have to pay spousal support or child support or Capital One for that trip to Maui. You both want the house – a partition action will need to be filed (in a regular civil court, as opposed to a domestic relations court) if you both hold title to the home. If only one of you has the title, the other may end up with nothing. You both want the cars and the furniture – yet another civil suit. You both want the kids (but only one of you can be considered the legal parent) – you will find yourself in Juvenile Court. No one wants the debt – but if your name is on it, it’s yours. And of course everyone wants spousal support, but too bad, you were never married. Same thing goes for that portion of the retirement account you thought you were entitled to. How can it be determined what portion goes to you when you were never considered to be married? What if you were living together as a married couple for 15 years before any state even said you could get married. See the problem?

With a same-sex couple, there are always going to be roadblocks when it comes to divorce beginning with considering where and how to start the process and ending with how to tie up the loose ends that occur at the end of any type of long-term relationship. This is why it is important for same-sex couples to be proactive and talk to an experienced family law attorney about drafting a Domestic Partnership Agreement, or if failing to enter into one, how to navigate through the complex legal proceedings necessary to obtain an equitable result.