The Gay Divorce Dilemma: Some Silver Linings

Same-sex couples always found it hard to get married. Now that they can, they are finding it even harder to get divorced.

While it’s possible to run off to, say, Vermont or Massachusetts to get married, it is not possible to obtain a divorce the same way. That’s because getting married is not a lawsuit, but getting a divorce is. Court jurisdiction over a divorce case usually depends on residency – at least one of the spouses needs to live there. One exception is that Washington, DC now allows couples that are married in DC to return to DC for a divorce without establishing residency. (So, Washington, DC may become the most sought-after same-sex wedding destination – a choice of venue that may contemplate untying the knot before it even gets tied.)

A dilemma arises when a couple wants to dissolve their marriage but finds themselves living in any of the 39 states that do not recognize gay marriages. (Currently in the United States, same-sex marriage is permitted in Washington, DC, Maryland, New York, Connecticut, Rhode Island, Massachusetts, Vermont, New Hampshire, Maine, and Iowa, and same-sex marriages are recognized in California and New Jersey).

One possible solution is for one or both spouses to pick up and move to a new state in order to get divorced, but for most folks that is highly impractical. So far, it seems that most people in this conundrum simply separate without divorcing.

I often talk about the importance of mediating a separation agreement for divorce. There are also many good reasons to have a contractual agreement when a couple separates without divorcing. Actually, some couples even choose to separate without divorcing – in order to maintain family health insurance or to benefit from joint tax filing, for example. A long-term separation may work until someone wants to remarry.

In this situation, a separation agreement does not get filed in court, but can still be an enforceable contract. A separation agreement can still establish commitments for asset distribution, expenses, and parenting. And it’s not all about property, cash flow, and kids. It can also address issues of dating and cohabitation, parental relocation, life insurance and disability, agreements about how to manage conflicts going forward, and more. Working out the terms of the agreement together can help establish boundaries, create guidelines for communication, and provide some measure of control over how you restructure and reorganize your lives going forward. These are not gay or straight issues. These are human, family issues.