Emerging Issues in Same-Sex Dissolutions

I’m giving a series of talks in the coming month about the emerging issues arising in same-sex dissolutions, and the issues are indeed complicated.  For some couples, there are messy legal issues.  Many couples have been together for a long time, but only state-registered or married for a few years.  For those couples the legal rules treat their pre-marital period as an unmarried couple, even if they (or one of them!) thought of themselves as married.  How should money and property be divided up if it was accumulated during that period of time?  The one with the assets will typically say “We weren’t married so it’s all mine,” whereas the other one will claim they were “like a married couple” from the start – and should be treated as such.  

The other legal issue is that of the couple that chose to be unmarried or unregistered — but one of them now regrets that choice.  It may be that they really didn’t think about the consequences, and now, one of the partners is going to be handicapped as a result.  True, California law allows unmarried partners to make financial and property claims, but these are hard to win.  Many folks – including me- believe that there may be compelling moral or practical justifications for sharing assets at the time of a dissolution, even if the law doesn’t compel this result – but figuring out what is fair is never easy.

The next level of problems are those that arise when the legal rules are in direct conflict with how the couple -or one of the spouses – thinks is fair.  Many gay and lesbian couples registered or married as an act of civil protest, or simply to gain insurance benefits.  They really weren’t thinking about the long term financial consequences – and unlike many straight couples, they may not have realized that their marriage or registration would pull them into the marital law system.  Sure, these same problems arise in straight divorces, but my sense is that the gap between the legal rules (based primarily on customs of traditional heterosexual marriage) is greater in our community.

Lastly, there are the more elusive dynamics on the emotional front.  Many in our community are alienated from our families of origin, and many gays and lesbians had difficult childhoods.  These emotional backgrounds can surface in a dissolution, where the real problems of financial strain and emotional vulnerability trigger these long-standing wounds.  Winning the right to marry doesn’t really help all that much if you are in the midst of a divorce – making the dissolution process even more difficult.

There are no easy answers, but there are a few insights that can help.  First, we all need to recognize that the legal system is not a perfect system, especially for us.  The rules are unclear and constantly changing, the judges are not used to our lives, and the legal advocates are themselves often confused and uncomfortable.  Second, we need to acknowledge that each partner experiences her or his own reality, and there is no single “truth” about the past – especially in love relationships.  Third, keep your eyes on the goal — which is to resolve disputes with a minimum of cost and aggravation, and a minimum of pain to each party.  Be willing to admit uncertainty and reach a compromise on the disputed issues – rather than seeing the divorce as the last change to take revenge on the person you formerly loved.  I can assure you that you will feel better in the long run! 

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