It’s Pride Month! Happy Pride! June 26 is also the 8th anniversary of the release of the decision on Obergefell v. Hodges, which finally corrected the horrendous Defense of Marriage Act (DOMA) and legalized same-sex marriages in every state of the US. Thank goodness!
But same-sex marriages can lead to same-sex divorces. If you or a loved one are going through a same-sex divorce, there are a few things that need special attention:
- Making sure that both parents have an established legal relationship with the children.
- Making sure that the pronouns are correct throughout the settlement agreement.
- Thinking very intentionally about the dates you will use for distributing assets.
Let’s dive in:
Parents’ legal relationships with the children
You’ve gotten that piece of paper from the City Hall, and you are legally married. Your wife has a baby, and in the old days (before DNA testing and same-sex marriage), that created a rebuttable presumption that the child was yours. We still have that presumption of parentage, but it is just a presumption. Just because you have a legal relationship with your spouse, it doesn’t ensure that you have a legal relationship with your child.
Let’s say you (a woman) and your wife decide to conceive and raise a baby together. Congratulations! But let’s say it’s 5 years later, and you and your wife are getting divorced. Your wife decides she doesn’t want you to have access to the child. You never got around to adopting the baby because you were too busy staying up with her all night and then feeding her pasta and later taking her to play dates. Doing mom things. You have no biological relationship with the child nor have you established a legal relationship with the child through adoption. Now you are in a pickle.
So the most important thing you can do – early on – is to establish that legal relationship with your child directly via a Second Parent Adoption, or obtaining a Judgment of Parentage. (The latter is becoming more common but is not available in all states). If you have not done this by the time you are negotiating your settlement agreement, make sure to include a provision saying that the bio-mother will consent. And get it done as soon as possible. I’ve heard heartbreaking stories from wonderful mothers who did not get this OTHER piece of paper.
No matter what your lawyer may think of using the pronoun “they” for one person, it is becoming more and more acceptable, and it is appearing in more and more settlement agreements. Your pronouns should be appropriate to your gender identity. It’s really very simple. But this might be new for your lawyer, so try to be patient and understanding. Correct them firmly but kindly.
The Dates – What does “During the Marriage” mean?
Property distribution often involves starting and ending dates. For instance, you may be entitled to half of the retirement assets that your spouse built up during the marriage (and vice versa). Anything that you had before you got married is considered “premarital” and is separate property. But what does “during the marriage” mean?
In the old days, it was clear cut – “during the marriage” started on the day you were legally married and lasted until the day one of you filed for divorce in court. But is that fair? Because same-sex marriage only became legal a few years ago, many couples were sharing money and living together for a long time before they got married.
Let’s say you had $10,000 in your 401K when you and your spouse started living together in 2000, $20,000 in your 401K when you got legally married in 2015, and there’s $100,000 in there now. What is fair to claim as your separate property – the amount you had before you started sharing money or the amount you had when you got legally married?
All of these things need some nuanced negotiation – and to be addressed intentionally. Sometimes the law has to be addressed creatively to make it fair. Do you follow the spirit of the law or the letter of the law? Mediation and collaborative law give you the opportunity to come up with your own solutions.