Same-sex Marriage and the Right to Divorce

Gray Divorce
September 13, 2016
Interview of Michael Heath
December 18, 2016

Same-sex Marriage and the Right to Divorce


When the US Supreme Court’s ruling in Obergefell v. Hodges legalized same-sex marriage across the country, a national bureaucratic nightmare ended. By making states recognize same-sex marriage everywhere, gay couples were also granted the right to divorce everywhere. Before the high court decision, only 13 states and the District of Columbia recognized same-sex marriage while a few others allowed civil unions or domestic partnerships. The rest had no laws on the books giving anything resembling the marital rights heterosexual couples enjoyed. When gay couples tied-the-knot in a state that allowed same-sex marriage and then moved to a state that did not have the same laws, they were unable to divorce if they chose to. They could go back to the state they married in but states often had residency provisions requiring waiting periods; ending the marriage could have its logistical problems. Thankfully, these concerns are no longer an issue.

Now a marriage is a marriage whether the couple is gay or straight. The same is true with divorce. The William Institute claims that 2 % of straight marriages end per year while the gay community is only experiencing a 1 % dissolution rate. However, academics make note of the backlog of gay couples who had waited years to get married and did so. These were couple who had established relationships and it is logical that the success rate would be better. However, it is predicted that the rate of gay divorce will rise once younger, more impulsive couples find their way into the statistical mix.

The divorce issues are the same for gay couples as they are for their heterosexual counterparts: child custody, alimony, finances, division of property etc. What gay couples can learn from straight couples is that protracted divorces are emotionally damaging and financially draining. If a same-sex couple decides to divorce, they should consider mediation or collaborative law where a spirit of working together to end the marriage is used instead of the adversarial litigation model where the object is to fight it out. Gay couples can even seek out mediators and collaborative lawyers who specialize in serving the LGBT community. A couple that actively works with experienced professionals to dissolve a marriage can expect to end the marital union in a way that is more amicable, and less costly, than if they had headed to court.

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