Mediation for Gay and Lesbian Break Ups
Family Fairness is honored to host a guest post from Family Mediator Rich Gordon. Mr. Gordon discusses the difficulties same-sex couples face when their relationships end. Unlike opposite-sex married couples, same-sex couples in long-term unions do not have the luxury of turning to the courts for assistance when determining child custody, property division, pets, bills, or any of the number of joint obligations taken on during a partnership. Instead, Mr. Gordon recommends these couples look to a family mediator for assistance:
Sarah and Beth have lived together for seven years. They intended to live happily ever after, but as too often happens, they drifted apart and their relationship started to strain at the edges. Communications was cut off. Sex was a bother rather than a pleasure. They no longer laughed together. It was time to end it and move on.
Unfortunately there were "entanglements" which had to be addressed. There was the house they purchased and decorated together. There were credit card bills to face. There were life insurance policies taken out during better times. They had but one car to share between the two of them. Who would get the dog? There was only one CD player and so many discs. The biggest issue, however, was Margo; Sarah had given birth, but both were the child's parents.
Unlike straight couples, gay and lesbian couples do not have the option of turning to the law for an answer. Straight couples can use case law and statutes to untangle their relationships and property; gay and lesbian couples cannot. The law often does not protect the individuals of a same sex marriage as it does heterosexual couples. There are no rights of spousal support, visitation, pension benefits or other community property protections.
One solution for this problem is mediation. Through this process, parties can work on solutions that are not available to them through the traditional court system. By selecting mediation, the parties in a dissolving relatcionship are choosing to take charge of their lives by maintaining their sense of dignity and self-esteem. They are saying that they prefer to end their relationship in a cooperative, forward thinking way, which minimizes the anger associated with the break up.
A skilled and experienced mediator is able to create a safe place and a cooperative environment that encourages the parties to engage in open and honest discussion. The mediator's role is that of an impartial neutral. He must identify the issues, explore each parties underlying interests, and balance the power within the relationship.
A mediator is NOT an advocate for either party, nor does he make the decisions which affect the settlement. They are trained to listen and help each of the parties to stay focused on the task at hand. During the course of mediation, the parties are encourage to discuss all of the issues and explore the various options they have to resolve their differences.
The final product of a successful mediation is a Memorandum of Understanding. This is analogous to the Martial Settlement Agreement for straight couples. The Memorandum of Understanding is a contract that sets forth the details and specifics of the mutually agreed to decisions. If either party breaches any of the terms, the other has a right to sue for enforcement in a court of law.
Have a question, comment, or response? Share your thoughts.“With Gay Marriage Comes Gay Divorce” - A Rebuttal
In what will hopefully be an ongoing segment, I would like to shine a spotlight on some of the arguments those against inclusive marriage are advancing. In the wake of the Vermont vote and Iowa ruling, the sky-is-falling fears of the marriage exclusionists have blossomed into full on doomsday predictions. To counter the rhetoric, I would like to select a sampling of the arguments and rebut them. The first I would like to address involves concerns that gay marriage would lead to legally confusing, socially upheavaling, and child destroying gay divorce.
This is an argument that is somewhat new to me, but that I have already encountered twice since Vermont's vote yesterday. It goes something like this:
I'll be for it when gays/lesbians, when entering the marriage[,] are obligated to choose which of them is viewed as the male and which is the female in the eyes of the law. In the real world[,] men and women are treated differently in the eyes of the law when it comes to divorce, dividing assets, alimony, child support, etc [. . . .] [T]he gay community wants all the benefits without having to risk the drawbacks. Agree to one choosing the male role and one the female role in the event of a divorce, and you have my FOR vote.
User 'zilla' on debate site ConvinceMe
It was probably not this individual's intent to reinforce the heterocentric point of view that in a relationship one has to be the "man" and the other the "woman". Many same-sex couples battle with the assumption that one must take on a traditionally masculine role while the other adopts the feminine role. No couple, gay or straight, should be forced to integrate these social mores into their relationship unless they mesh with their own individual choices. A couple is free to divide the jobs between the partners in any way they personally see fit. While this is somewhat tangental to the point this individual was attempting to make, I did want to address the damaging stereotype.
The crux of this person's argument rests in the concern that the legal system is ill-adapted to deal with the implications of a same-sex divorce. The position suggests that females (presumably) are favored at divorce, often gaining child custody and support, alimony, and favorable asset division. This view was reinforced by a second individual, who e-mailed me in response to my analysis of Iowa's ruling:
In this case, [I]'m just wondering about the social implications. Let's say since gay marriage is legal, that means gay married couples can adopt as a couple. Now what happens to custody when a gay couple decides to get divorce[d]. Who gets primary custody? In "traditional" marriage right now, the social precedent is that mothers are the better than fathers to raise kids, but how will the courts decide when there are two mothers involved?
Anonymous
To both individuals, I want to clarify an apparent misconception with how our courts deal with divorces both opposite-sex and same-sex. While it may be a social precedent that mothers receive custody of children born during a marriage, this is certainly not the current legal precedent. While there is no single determinative element as to who receives custody, the decision is always made based on what is in the child's best interest. A number of factors including the parents' financial positions, relationship with the child, proximity to the child's school, history of criminal or abusive conduct, time able to spend with the child, and stability of home, as well as, in some cases, the child's preferences are all taken into account. This would not change simply because a same-sex couple rather than an opposite-sex is seeking a divorce.
While it may seem that women are favored in custody hearings, it is not simply due to their female anatomy. Courts simply prefer the roles that woman, often due to pressure from social norms, tend to adopt. If the roles were reversed, as in an opposite-sex relationship where the mother works and the father stays at home with the children, the father would be the one to receive the supposed preferential treatment.
The same is true of asset division, child support, and alimony. A non-working, child rearing partner tends to receive a more preferential division of wealth. As a matter of public policy, we want to ensure that an individual who was completely financially dependent on his or her ex-spouse is still cared for following divorce. This is never simply based on the individual's sex, but on his or her role in the relationship.
When it comes to same-sex divorces, all of the same factors are still relevant. There would be no legal confusion when the court faces two mothers or two fathers because, again, the sex of the parent is not a considered factor. Rather, the partner who is better able to provide a home that would be in the best interest of the child would be granted custody whether that parent is gay, straight, male, or female.
It is an unfortunate truth that half of all married couples — same-sex or opposite-sex — will decide to divorce. Our society has grown and matured to the point that we understand the reasons behind such a decision, and have adapted our legal system in order to ease the transition for the individuals and for their children. Marriage inclusion will not cause upheaval in our courts like some seem to fear it will. And if we ever face a question for which we have no answer, we will figure it out when we get to it. That, simply, is how our system of laws works.
If you have your own response to this argument, whether you agree or disagree with me, be sure to share it in the comments section. Any debate should be cordial and well-reasoned, but all viewpoints are welcomed and uncensored.
Have a question, comment, or response? Share your thoughts.Inconsistent State Laws Create Adoption Fight in Louisiana
Gay Louisiana fathers Oren Adar and Mickey Ray Smith won a major court battle when a federal judge ordered the state to list both men's names on their adopted child's birth certificate. Though their son was adopted in New York state, a jurisdiction permitting same-sex couples to jointly adopt, Louisiana law prohibits two unmarried people from doing so.
The state's attorney general has already filed an appeal to the 5th U.S. Circuit Court, claiming in his brief that "[t]he federal district court has significantly misinterpreted Louisiana vital records law, forcing Louisiana to import and adopt New York law." He has also asked the court to temporarily halt the ruling until the appeal can be heard.
The fight highlights the difficulty same-sex couples face when inconsistent state laws cast doubt on the legitimacy of marriages, civil unions, adoptions, and other legal statuses when they cross state lines. Before relocating, a family should consult an attorney in their new state to verify that their legal documents will be valid and recognized.
Via Mercury News.
Have a question, comment, or response? Share your thoughts.Two Competing Marriage Bills in Rhode Island
Two bills are currently before the Rhode Island Senate Judiciary Committee with very different goals regarding same-sex marriage. The first permits gay and lesbian couples to enter into a legal marriage, mirroring the current law in Massachusetts and Connecticut. The second proposes an outright ban on both performing and recognizing same-sex marriages in the state.
A third bill seeks to give Rhode Island the ability to divorce same-sex couples who were married in another state. Family Fairness has recently explored the difficulties couples face when trying to divorce in a different state than the one that married them.
With these new bills, all New England states now permit or are considering permitting same-sex marriages.
Via Boston Globe
Have a question, comment, or response? Share your thoughts.Married in Massachusetts, Divorced in Texas?
A Dallas couple who married in Massachusetts are currently attempting to persuade Texas courts to permit them to divorce. The couple may not request a divorce from Massachusetts as it has a requirement that they live for one year in the state before granting a divorce. Says the couple's attorney Peter Schulte: "It's about recognizing what other states have recognized and allowing those individuals who choose to live in the state of Texas to be able to dissolve their relationship without having to move back to the state where they were married."
Heterosexual couples are able to seek a divorce from their current state of residence without needing to return to the state that married them. This is because states have a reciprocity agreement to recognize each other's marriages and divorces. However, Texas Attorney General Greg Abbott intends to intervene in the case and use previous support for the anti-gay marriage amendment to suggest that Texas courts may also not handle same-sex divorces.
While of course most couples planning for marriage are reluctant to plan for the possibility of divorce, situations like this can create difficulties down the line. It is important to be familiar with the laws regarding marriage and divorce both in your own state, and the state (or country) you intend to marry in to avoid these potential problems.
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