Marriage for All, Divorce for All
By Alisa Peskin-Shepherd
Since same-sex marriage first became legal in Massachusetts in 2004, I’ve been watching to see if marriage trends and divorce trends mirror what we see in the heterosexual world. Because just as anyone can fall in love, anyone can fall out of love, too.
Not all marriages are meant to last forever!
Since 2015, same-sex couples have been allowed to legally marry in all 50 states, but the effort began way back in the 1970s, as part of the Civil Rights movement to extend the rights of a democratic nation to all of its citizens. I believe strongly that all couples who want to marry should be allowed to do so.
A 2011 study initially reported that same-sex couples divorced at a slightly lower rate than their opposite-sex couple counterparts. According to a 2021 article by Pride Legal, lesbian marriage has a high divorce rate. The article cites a 16% divorce rate for gay marriages compared with a 34% divorce rate for lesbian couples – against a 19% divorce rate for heterosexual couples.
(Check out this 2013 New York Magazine article about same-sex splits.)
In the LGBTQ community, there is not always consensus on the formal institution of marriage. Some eagerly march to the altar, excited to finally have the option to be equal under the laws of our nation.
Other couples, however, won’t marry on principle, seeing it as a backwards, archaic institution foisted upon people as a way of locking in property and control.
With legal recognition comes legal quandaries, and a legally-married same-sex couple who wants to split must go through the same processes as a heterosexual couple seeking to divorce. The tricky part comes when they have children.
Six states have attempted to deny same-sex couples full adoption rights when one partner (or both) is not the biological parent of the child. Not having both parents’ names on a child’s birth certificate can cause immense problems if a couple parts ways.
In 2017, the Supreme Court ruled in the case of Pavan v. Smith that same-sex couples must be treated equally to opposite-sex couples in the issuance of birth certificates.
Divorce occurs according to state specifications, which dictate child support, child custody, division of assets and spousal support. If an LGBTQ couple married before 2015, a local judge may split assets unfairly or not be open to shared custody or parental rights.
If the couple can create a harmonious parenting plan on their own, it will serve them well when they go to court. If they leave it up to the court, they may find that the non-biological parent, if they have not adopted the child legally, may be out in the cold.
If a spouse was never considered the child’s parent in the eyes of the law, the court may not grant visitation, custody, or parental rights. How devastating for both the child and the non-custodial parent!
After the Supreme Court leak highlighting the forthcoming overturning of Roe v. Wade, many of us in the law are concerned that this will spark a trend of overturning long-fought-for laws affecting other American rights, including same-sex marriage. We’ve fought so hard for so long to give all our citizens equal representation under the law.
I hope it’s not all in vain.