If you are reading this blog, you may be thinking, “How can lawyers start talking about gay divorce when the ink is barely dry on the gay marriage opinion?” Unfortunately, with the right to marry comes the right to divorce, and gay divorces have already begun across the country. As a family lawyer, I worry that my LGBTQ clients have had such a struggle clarifying their fundamental right to get married that there has been little to no focus on what happens when a marriages does not last a lifetime. When very few gay couples could marry, it just wasn’t something that most had to consider. However, when the right to marry was confirmed as a fundamental right of all people, the time instantly arrived for every adult to become educated about all aspects of that relationship, including its possible end.
There are many reasons collaborative divorce is a great choice for most divorcing couples – the privacy, flexible scheduling, ability for parties to reach their own agreements, the greater involvement and therefore investment in the outcome for the parties, the ability to be tailored to the needs of the parties, the chance to use neutral instead of competing experts, the ability to start the framework for a cooperative co-parenting relationship… the list goes on and on. These are all reasons for any divorcing couple to consider the collaborative process.
I believe, however, the LGBTQ community is in a unique position to benefit from and transform collaborative divorce. Collaborative divorce began when a Minnesota attorney burned out after litigating for decades and developed this new, outside-the-box alternative to litigation in a courtroom. As collaborative law has grown, lawyers and litigants alike have had to make serious shifts in their former ways of thinking. It is difficult sometimes to change from “in-the-box” thinking to “out-of-the-box” thinking. In my opinion, the LGBTQ community is a unique population in that it has been working outside the box for decades. Creativity has always been a necessity to secure results heterosexual couples took for granted. A benefit from that struggle may be that, as a population, LGBTQ couples are already outside-the-box thinkers, and in the collaborative process, those couples can create completely tailor-made solutions in each collaborative divorce, without some of the struggles straight couples experience when they work to change their thinking from the “norm”. We are excited to help individual clients and to see how the collaborative process improves throughout the nation with a new group of flexible thinkers able to collaboratively divorce.
Additionally, I believe that collaborative divorce is going to be important in helping gay divorces be just and equitable to individual couples. The Supreme Court ruling is sweeping, and may have unanticipated consequences. Many gay couples have been together many years, often referring to each other as “spouses” even in states with no gay marriage. During this time, these couples have been living lives and acquiring assets and raising children. There may have been no legitimate expectation that they were actually married. However, with this ruling, it is my understanding federal benefits are perhaps being backdated for gay couples. I think it raises the question – as yet undetermined – “In states like Texas with common law marriage, are there thousands of gay couples that are married and did not know it?” I think it is possible that in many cases, a common law marriage could be proven if one side wants to argue that issue. If so, what are the unexpected property and custody ramifications to these couples? As these issues arise and are ruled upon by the Courts, there will be rules that apply arbitrarily (and perhaps unfairly) to many couples. It also may be that Constitutional concerns will prevent the courts from applying common-law marriage retroactively. However, pursuing those litigated answers will be time consuming and expensive. The collaborative process provides an avenue for these couples to make decisions based on what was actually happening in their relationships rather than suffer lengthy litigation and possibly unanticipated results from Court rulings about these kinds of issues. Particularly for couples that have been together for many years, this control could be incredibly important to both parties as they dissolve that long-term relationship.
Darcy Loveless is a Board Certified Family Law Attorney in Denton Texas and a member of the Denton County Collaborative Professionals. You can reach Darcy at 940-387-7736 or through her website at www.cmloveless.com