Some Issue of Divorce for Lesbian and Gay Couples
by Liz Winfeld, FA
In this article, I will explore what the issues are for gay and lesbian couples in partnerships, unions, registered relationships or state-legalized marriages who have kids and who break up.
The best answer, where the children of a couple who are parting ways are concerned, is that the best interests of the kids should come first. I don't think anyone much disagrees with that whether the couple in question is gay or straight.
But are the rules of the game different for gay couples who are breaking up or divorcing when it comes to what decisions they can make about their kids? It turns out that there are some things to consider.
Before I go any further, please be very clear that I am not an attorney or a tax accountant. My expertise around finances extends only as far as helping people come up with working financial plans and investment scenarios. If any of what follows is useful, I'm glad. But probably the most useful thing I can say is: consult a qualified attorney or tax accountant should you be contemplating, or in the midst of, the break-up of a same-sex relationship regardless of its legal standing.
Gayby Boom to Diva Divorce?
Many people don't know that the second fastest growing family unit in the US is, and has been since the mid-1990's, gay families choosing children. The first always has been, and still is, single moms. Believe whatever you want about such relationships; you have to admit there are pretty much zero accidental pregnancies among gay and lesbian people.
Recently it's been posited that the partial-demise of DOMA (Defense of Marriage Act) will start a new boom in divorce attributable to gay and lesbian couples who will marry and then, like a lot of people, divorce. Even in places like Massachusetts where marriage for same-sex couples has been legal since 2004, and in Canada or in the Netherlands which have permitted these marriages for over a decade, the divorce rate among gay populations in those places matches or exceeds that of straight couples.
While the sociological reasons for this might be fascinating, I must limit myself to the question at hand which is: what do lesbian or gay people in dissolving relationships do in their own best interests or those of their kids?
Location, Location, Location
Because the June 26, 2013 Supreme Court DOMA decision spoke only to the Federal rights of couples who live in those States that recognize their marriage (and really didn't do that all too completely clearly either. Again, another subject entirely), and it didn't "legalize" same-sex marriage nationwide or make it mandatory that one State recognize marriages performed in other States (let the lawsuits begin!), the first problem is that there is still no level playing field.
Here in Maine, same-sex marriages are legal and binding, so we don't fall into any grey areas when it comes to marital status and/or the ability to divorce just like any straight couple would. But should a couple, or part of a couple, leave Maine while getting a divorce and relocate to a State where the marriage is not recognized AND there are custody issues, things get murky fast.
Assuming though that we are talking about a couple who lives in Maine and got married in Maine, they are married and should they choose divorce, the rules of the game - including those divining custody, would be the same for them as for any other couple.
However, if a couple moved here from a State that doesn't recognize marriage, they might have to satisfy a residency requirement to get a divorce and they might also face a child-custody problem if the non-biological mother or father has not adopted the child or children.
So, you can see why a good lawyer, familiar with this particular part of marital law as it continues to evolve, would be a good idea.
Absent Marriage:
What about when, even in Maine, the couple has not gotten married, but they have children? They would likely be like any other couple in that their relationship could include shared homes, cars, bank accounts; benefit plans and adopted, or biological, children.
My research indicates that, absent marriage and/or a "pre-agreement" (since even the phrase "pre-nup" does us no good here), gay couples have three options:
This would be the least costly way. It would maintain the couples' privacy and make the process simple and quick. But, since there is no legally binding contract, one partner could walk away with more than is her/his right. There's also the emotional aspect to consider. Break-ups are almost never easy, even if mutually agreed to.
This way each side would be legally represented which would mean they would have a trained professional to focus on their rights. At least everyone walks away with a binding agreement. It would certainly cost more, but there wouldn't be any court filing fees.
Cheaper than a lawyer with a binding agreement at the end.
Whether you're gay or straight, marriage is a contract between two people that is, hopefully, entered into willfully and joyfully and lovingly. But there's no reason to suspect that the same things that fell straight marriages will affect gay ones as well. While getting a divorce for gay people who have chosen legal marriage in a State that allows it will now afford them the same benefits (tax and titling-wise) of "breaking up with legal standing", when children are involved, sexual orientation could not matter less. Taking care of the kids is job one and finding the best way to do that should be the only priority.
Liz Winfeld is a Financial Advisor and Accredited Asset Management Specialist with RBC Wealth Management in Portland. She invites you to visit her website at http://www.rbcwmfa.com/liz.winfeld or contact her at Liz.Winfeld@rbc.com; 207 756 6107
