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.
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(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.
Photo by Alvin Mahmudov on Unsplash
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.
When same-sex marriage became legal, partners finally achieved the right to marry under the law.
With this advancement in marriage in our country comes the right to dissolve marriages, too, and all the ugliness that can accompany it. According to this article, a Tucson mom tried to deny parenting time to her former partner, insisting that since they weren’t both biological parents, the other parent had no legal rights.
Well, be careful what you ask for, right? You can’t have it both ways! The right to marry means the same rights come when a marriage ends, and that includes dividing parenting time and responsibilities among the child’s parents – biological or otherwise.
Frankly, this flies in the face of everything people have been fighting for in the area of same-sex marriage. You can’t pick and choose. All rights, or no rights, right?
Here is an example of a parent trying to manipulate the law to suit her emotions, rather than advocating for full and equal coverage in all realms.
How often do we manipulate the law or a situation to our benefit and ultimately hurt our children in the process?
I wish people would realize that it really does take a village to raise children. Can a child ever have too many people who love and care about him or her?
In this case, the mom wasn’t alleging that the other mom was a bad mom, a drug addict, or in any way irresponsible. The battled has raged for five years, and it’s really a result of selfishness and hurt, not logic or law.
Of course, we don’t know the underlying details, but I do know that every day people try to manipulate the law to make it work for their own benefit. And yet, when we are equally advocating to change the law to give equal access to all people, we can’t then argue out of the other side of our mouths, trying to shut down the same laws because our feelings were hurt.
Over the summer, I was sitting at an outdoor table, with beautiful flowers in a centerpiece and delicious food before me as a dear friend married his same-sex life partner.
At my table sat another gay man who is also a lawyer, and the conversation turned as it will to the question of the right of same-sex couples to marry. It’s been a big issue lately in the news, especially in the wake of a recent Michigan decision that it is still not legal for same-sex couples in this state to become a legally married couple.
However, I cautioned the attorney at my side that the right to marry also means a couple has to abide by the laws of divorce. It’s something that some couples don’t consider when they’re advocating for equal rights in marriage – there are equal rights in divorce, then, too.
The other attorney agreed. He lives in California and he realized that after the law there changed to allow same-sex couples to marry, he noticed an influx of clients coming to him to legalize their divorces. They could no longer just break up like they did in their pre-marriage days. They now need something legal to say their marriage has ended.
When you’re so focused on the fight to win the war, are you looking at the consequences? There are obligations that come with being married. One of those is that if you want the state to recognize your marriage, now you’re obligated to the laws of the state to end your marriage.
From a divorce attorney’s perspective, it doesn’t matter if spouses are same gender or different – issues of support, parenting time, division of property and more also don’t see gender difference. They loom large and they need resolution all the same.
It’s something to think about as we venture into this brave new world. With the benefits of any new, hard-won right come the obligations, too.