With the advent of marriage for gays and lesbians, divorce is inevitably becoming an issue. The complications caused by confusing or non-existent laws can become a nightmare for some couples. 

Jessica Woll is managing partner of Woll & Woll P.C. in Southfield, a firm that specializes in family law, including divorce. Her law degree is from Wayne State University Law School and she also holds a degree from the University of Michigan in International Relations and Economic Development.

She spoke recently with Steve Thorpe of the Legal News.

 

Thorpe: What special challenges might a gay couple face if they decide to end a marriage?
 

Woll: The number one challenge is the fact that if an individual resides in a state that does not recognize gay marriage, that individual cannot use the court system in his/her home state to get a divorce. Therefore, the only way to get divorced is to move and establish residency in a state that does recognize gay marriage. Establishing residency typically requires a person to reside in the state for a period of six months.  

The other big challenges include how to deal with custody and parenting time and how to divide the marital assets. For instance, if one spouse is the biological parent of a minor child and the other spouse did not legally adopt the child, the non-biological spouse may have no legal rights to share in custody and parenting time.  
 

Additionally, if an individual lives in a state that does not recognize gay marriage, the court in that state may not grant the individual rights to one-half of the marital assets in the spouse’s name, which could be devastating if that individual is not the wage earning spouse.

 

Thorpe: Massachusetts became the first state to legalize gay marriage in 2004 with others soon following suit. Does it matter which of those states a couple was married in if they decide to divorce? Is one state better than another when seeking a divorce?

Woll: Fourteen states, as well as the District of Columbia, recognize gay marriage.  If a gay couple married in D.C. or one of the 14 states that allows same sex couples to marry and they still live in one of the states that recognize gay marriage, they can use a local family court to obtain a divorce. However, if the couple married in a state such as Massachusetts that recognizes gay marriage, but lives in Michigan or another state that does not, where that couple married has a huge impact on the divorce because the couple will not be able to use their state’s court system to end the marriage. If a couple lives in an anti-same sex marriage state, they will have to move to a state that recognizes gay marriages and establish residency there in order to get divorced. Obviously, there are many gay couples desirous of a divorce that cannot up and leave their home state to create a new life elsewhere in a place that allows them to divorce. Therefore, some advocates of gay marriage caution gay couples that want to marry to do so only if they live in a state that recognizes gay unions.

Thorpe: Some gay couples describe themselves as stuck because their state has a provision for marriage, but not divorce, for them. Tell us about that.

Woll: If a court allows a gay couple to marry, they have to allow them to divorce. But even if the couple lives in a gay marriage liberal state like California, it does not necessarily mean they will be treated the same as heterosexual divorcing couples.  Gay marriage has been around for just under a decade. Therefore, even in states that allow gay couples to marry, the court may still treat the same sex couple as a novelty. 

There are dreadful stories warning that if a gay couple tries to split up in a state that legitimately allows a gay couple to marry in the first place, they may still have to face a different standard during the divorce process than their heterosexual counterparts. I believe if a state allows gay marriage, they should allow the gay couple to divorce in the exact same way as they allow a man and a woman to obtain a divorce.

 

Thorpe: Is a prenuptial agreement any help in reducing problems if a gay couple eventually splits?

Woll: Because a prenuptial agreement requires an engaged couple to determine their rights to property in the event of a divorce, such as how to divide premarital and marital assets, it may prove helpful for gay (and straight) couples. If both parties are happy with the terms of their prenuptial contract going into the marriage, it is likely that they will follow the terms of their agreement if they call it quits. The problem then becomes, how helpful is a prenuptial agreement if you live in a state that does not recognize same sex marriage? A prenuptial agreement is only enforceable if one marries his/her spouse. If a couple lives in a state that does not recognize the marriage as legitimate, that state will not recognize the prenuptial agreement either. However, if a couple moves to a state that recognizes same sex marriage and establish residency, then the couple can also attempt to have their prenuptial agreement validated as part of the divorce process.

 

Thorpe: Some gay married couples add adopted or artificially inseminated children to the equation. How does that affect the gay divorce situation?

Woll: As far as children are concerned, this is an extremely controversial issue right now. There is no uniformity between states regarding the determination of a non-biological parent’s rights in a same sex marriage. The first question to ask is whether or not the child is legally the child of both spouses. If one spouse is the biological parent of the child and resides in a state that does not recognize gay marriage, the non-biological parent may not have any rights to the child unless the non-biological parent adopts the child. Even if married in a state that recognizes gay marriage, if one spouse is not the biological parent and has failed to legally secure his/her rights as a parent through adoption, that spouse may have no parental rights and may not be viewed by the court as the child’s parent. This problem has caused devastating results across the country.

 

Thorpe: How do you see laws regarding gay divorce developing and evolving in the next decade?

Woll: I believe that more states will allow gay marriages. As more gay couples marry, the court systems across the country will become more proficient in dealing with gay marriages.  Ultimately, gay marriages will become less unique and more common place.