In the United States, an estimated 1.2 million LGBTQ couples are married today. Of those who enter into marriage, a significant number face the prospect of divorce at some point in their lives. When this happens, there may be unique circumstances that they have to contend with, such as coming out to one’s family and friends or how the children of the relationship will get treated by society when it comes time for custody battles and visitation schedules.
If you’re in the middle of an LGBTQ divorce case, you should know these five issues that LGBTQ couples face and how to mitigate them.
1. Discrimination Within the Court Systems
One of the biggest challenges for LGBTQ couples facing divorce is discrimination within the court systems. Even with LGBTQ laws in place, discrimination still occurs within the courts. Judges and lawyers can refuse to represent LGBTQ individuals, or they could be biased against them in their decisions. This is a serious issue because it inhibits an individual’s civil liberties that others enjoy freely.
Attorney Thomas Stahl notes that courts can’t presume a person’s sexual orientation or gender identity, but many courts still rely on stereotyping when making decisions. Luckily, discriminatory laws are being passed to combat this problem. LGBTQ couples should be aware of these discriminatory practices and know their rights before they enter the court system to get a divorce. Additionally, working with an LGBTQ lawyer can also help protect you from potential discrimination.
2. Asset Division and the Partnering Agreement
Living together as a couple is much different than living as roommates, and it’s important to make sure that all of your assets are divided equitably when you break up. Remember: this includes any property or money earned while you were both still under one roof. A lot can happen during your lifetime, and you need to make sure that if one person leaves the relationship, they don’t walk away with nothing.
This is where prenuptial agreements can come in handy. A partnering agreement can help lay out what will happen when a couple breaks up — especially ones who are LGBTQ. For instance, some people may not want their partner to have access to their inheritance or there may be disagreements about property division. Ensure that your partnering agreement is updated and that it also includes any children from the relationship. Finally, always have a lawyer review the agreement to make sure everything is being handled correctly.
3. Child Custody and Visitation Rights
It’s important to understand the difference between “legal custody” and “physical custody.” Legal custody refers to the rights, privileges, duties and powers which are specifically granted by law or statute, such as decision-making authority over a child’s education. Physical custody means where a child lives with one parent, most of the time. For LGBTQ couples, it’s important to understand that these arrangements can vary depending on the state of residence.
In some states, such as California and Maryland, there is a presumption in favor of joint legal custody between both parents with no particular preference given to either parent based on gender or sexual orientation. Challenges may arise when one parent has been identified as the primary caregiver, however. Consult your divorce lawyer to discuss your state’s policies and how you can negotiate an agreement that works for both of you.
4. Financial Support for Children After Divorce
LGBTQ couples also have to deal with issues related to financial support for their children after divorce. With the complexities of child support and custody, LGBTQ couples face different challenges than straight couples do. Some courts may still enforce a marriage contract that provides for spousal maintenance to be paid by one spouse even if they are now separated or divorced.
You may also face challenges with deciding who finances the college expenses, housing costs and other family needs. Divorce laws vary by state, so it is important to talk with a family law attorney before you make any final decisions about what will happen after your divorce.
5. Facing Society After Divorce
Finally, like other divorced couples, LGBTQ couples have to face society after a divorce. This process can be difficult for many people, and is especially complicated when there are children involved. The adult will also need to “come out” to other family members and friends. And, of course, they’ll have to tell their children’s schools that they’ve divorced and are now living in separate households.
These, among other issues, pose a unique set of challenges that LGBTQ couples face when entering the divorce process. The most important thing is to know that there are resources designed to help – and you’re not alone. Work with an LGBTQ-friendly lawyer to help you navigate these issues with ease.