Well-Being//

Handling the Unique Stressors of Divorce in the LGBT Community

A divorce experts weighs in on handling the specific stressors, bias, and a legacy that will take time to change.

Divorce is an unenviable event for any family, however, within the LGBT community, there are unique stressors and legal complications, some of which up until now might not have been part of the equation. The fundamental question of parentage, complications around the length of marriage and financial impact, the bias and judgment, and the simple fact that so many nuances are new, contribute to it being an extraordinarily difficult process. “It is a whole new reality and part of that reality is how are families formed, what is a parent, how are they defining themselves? That is the new reality. LGBT families are being recognized and that is the major change in the last few years,” says New York attorney Eric Wrubel, of Warshaw Burstein. 

Fundamental Parental Rights

LGBT marriage and divorce challenge the previously accepted and legally defensible construct of family. When we work with divorcing heterosexual couples to understand the financial facts and the child-related issues, we never even question a parent’s legal right to be a parent, and yet in the LGBT divorce, that very basic tenet can be challenged daily. 

In most states, biology and a legal relationship are what the law recognizes as parentage. Wrubel points out that “within the LGBT community, there are many families formed years ago, way before marriage equality, who never got married, continued to live the way they lived, had children, and then split.” So how does the law know that the other person Is a parent? In a lesbian case, for example, one carries the child, one has no biological relations and no adoption. Again, how does the law acknowledge parentage? And that is where a lot of the stress, anxiety and grief has developed, says Wrubel. “If not biologically or legally related, they could be terminated from having any contact with a child. Imagine raising this child every day, deciding to split and you no longer have the right to have any contact with this child. It is devastating to the parent and the child.”

To further complicate matters, LGBT families typically have more than two people involved in the process of forming their families.  Egg donors, sperm donors, and gestational carriers have some role in the creation of LGBT families.  It is not uncommon for one or more of these individuals to want to have a role in parenting the child born. Whether it’s a tri-custody or other similar arrangement, the division of child support can become a sticky matter since a state’s child support statutes have traditionally envisioned only one payor and one payee.  Some creativity can overcome this dilemma and enable the child to have full financial support.

It doesn’t stop there. Sometimes after divorce, one parent will want to have another biologically identical child (example, a lesbian mother uses the same sperm donor to have a second child) putting the co-parent of their first child in a situation in which her child has a 100% biological sibling for whom she has no parenting or financial relationship, causing complicated dynamics. These nuances are examples of why it is so important to work with an expert in LGBT family law in both the prenup planning stage, a surrogacy arrangement, tri-custody agreement, as well as during the divorce.

Unique Financial Implications

In heterosexual divorce, the dates of marriage are an essential marker for most aspects of the financials for both support and the distribution of property. In LGBT divorce, it can be significantly more complicated. As Wrubel points, out, “while it will eventually expire, you have many couples who have long-term relationships but were only able to marry more recently. Therefore, since they were deprived of their constitutional right to marry, ‘tacking’ allows the couple to use various fact patterns such as the exchanging of rings, a ceremony, joint bank accounts, etc., to establish that the date and length of marriage should be adjusted. This can have significant financial implications.”

Essential Support in the Workplace and Community

Many experts agree that the challenges in establishing the basic the right to parent, the lack of clarity in new legal arguments, and the fear of bias in the legal process contribute to the level of conflict in LGBT divorce as often the highest they have seen in their careers. Increased sensitivity to these unique fears and challenges for divorcing spouses is essential. “The hard part is balance. It is hard enough in a family to balance your day with family and work, but now imagine that half the support system is adversarial and gunning for you to fail. The best advice I can give to the workplace is to give that person room to work through this process”, says Wrubel. “It won’t be every day, it won’t be forever, but they need non-judgment, support, and understanding.”

We are just beginning to accept and even embrace conversation around divorce, and the unique aspects of the LGBT divorce must be recognized and supported as well. As with all marriages, be it heterosexual or LGBT, the conversation and advance planning with an expert prior to signing the potentially single most important contract in your lifetime, can go a long way to mitigate the emotional and financial cost to unwind it. 

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