Same-Sex Divorce Can Still Be a Legal Maze

What's one surprising benefit of marriage equality?  Divorce equality.

That's right.  While at Splitopia.com, we encourage couples to work out the details of their divorce without resorting to court, divorce laws are also there to protect us.  Before the Supreme Court’s 2015 decision in Obergefell v. Hodges guaranteeing same-sex couples the right to marry nationwide, same-sex couples could marry in about a dozen states, but only divorce in those recognizing same-sex marriage. This created any number of problems, both logistical and legal.  

The guarantee that your state will be involved in the legal minutia of your divorce may not seem like the kind of “right” worth fighting for.  But now, same-sex couples who want to tie the knot are protected by all the Federal and state-based rights and privileges of lawfully wedded union in all the states—including the right to divorce.

Why does the right to divorce matter?  We spoke to attorney Michele Zavos, the founder and managing partner at Zavos Juncker Law Group.  She has worked on marriage, divorce, parenting and LGBT issues in the Washington metropolitan area for the last 35 years. 

Splitopia: Can you explain why the Federally protected right to marry , including divorce, is so important?

Michele Zavos: Until last summer, when the Supreme Court declared marriage equality the law of the land, a same-sex couple could marry in a state with marriage equality, but if they lived in a state without marriage equality and wanted a divorce, their home state would not grant it. And because of residency requirements, they generally could not divorce in a marriage equality state, either. 

Marriage and divorce are seen very differently under the law. In terms of marriage, many, many states have no residency requirements, meaning you can fly to Vegas and marry that afternoon. Some jurisdictions have a limited waiting period to get married, but you don’t have to reside there to marry there. Whereas divorce almost always has specific residency requirements in every state. The shortest ones I’m aware of are six months. So one member of the couple has to live in a jurisdiction for six months before the couple can get divorced.  So figuring this out is one of the legal mazes that a married same-sex couple faced if they wanted to divorce.

Things have certainly changed since 2015. Now, same-sex couples can get married and divorced no matter where they live, and Federal constitutional law requires states to recognize these marriages, which means they must allow people to get divorced. The state law of marriage and divorce applies to them in the same way it applies to opposite-sex couples. 

But same-sex couples still face some unique legal challenges. Divorce is a legal maze for everybody, but it’s a particularly difficult legal maze for same-sex couples, as there can still be pre-marriage and after-marriage issues in terms of property.  

Opposite-sex couples can face the same problem, but usually those time periods are much shorter.

Splitopia: What are some of the biggest challenges still facing same-sex couples getting a divorce?

MZ: Say a same-sex couple meet. They get married. They buy the condo or the house, if they can. They have kids. Then, five years later, they get divorced. Their divorce follows the same guidelines as any straight couple in their state.

But say it’s an older couple, perhaps one that has been together 20 years. They don’t get married until 2015, because that’s when they could. And now, at year 25 of their relationship, they want to end it. But it’s only the fifth year of their official marriage. 

When we divide assets, we consider property accumulated during marriage as joint; but this couple has been accumulating for 25 years; shouldn’t those assets be joint? It’s very difficult to determine what standard to apply to the property accumulated prior to the time the couple got married. We do not have a structure for that to apply to this family. 

Splitopia: Are lawyers creating some sort of structure to help same sex couples figure out property issues in divorce?

MZ: We’re using old structures. Those of us who have been working in the gay community have been doing that forever.  We have something called “constructive trust,” for example, and something called “unjust enrichment.” 

Say we’re together for 20 years. We have a house, and I do all the maintenance and add on a room and redo the basement and put in a new bedroom—all of which increases the value of the house. But the house is only in your name. And then we break up. You say, “Well, its’ my house. You don’t get any part of this equity.” And I say, “Wait a minute.  I put in all this sweat equity. I should be paid back for that.”  How do you figure this out?  There is a principle in property called “unjust enrichment;” you should not be enriched based on all the work I did.  We’re using laws that do exist in the commercial sector to try to navigate this. But they don’t exactly apply, so somebody can still get hurt. What gay people have had to do, and lawyers like me have had to do, is look at other kinds of principles and laws that might apply to these situations and be really creative to try to protect people in these relationships. If there is a written contract, that helps enormously, but in my experience couples rarely do these.

Splitopia: What about children? 

MZ: Children are another issue. Let’s say you’ve got a lesbian couple. They’re married. They have a child by donor insemination with an unknown donor. There should be what we call a “marital presumption” applied to that marriage. This makes the non-birth mother a legal parent. If it was a husband and wife and the husband was infertile, and they used a sperm donor, the child would be assumed to be the legal child of the husband.  Well, we’ve seen a couple of cases around the country where this has happened with lesbians, and judges have said, “You know what? I’m not applying the marital presumption, because you cannot biologically have a child together.” So that is very disturbing and wrong, I think. It’s the same situation with two men who have a child together. 

Splitopia: Wow, really? A gay, non-biological parent can lose parental rights in divorce, whereas if it were a straight couple who used a sperm donor, the father would automatically be considered the legal parent? 

MZ: Absolutely. That’s correct. Because again, there are these assumptions. When straight people get married, no one asks them, “Are you biologically capable of having a child?” If they get married, and then they use a sperm donor or egg donor, no one asks, “Is it really your child?’”

Splitopia: Wow. Okay, so what do same-sex parents need to do in marriage to protect their parental rights, should they divorce? 

MZ: I strongly recommend that all of my same-sex or transgender clients go and get what’s called a “second-parent adoption,” even if they’re married. You go in and you actually get a court order that says the non-birth parent is a legal parent. And when you have a court order, a subsequent court has to recognize that, and there’s no exception to that recognition. Courts must recognize that court order. So, in case of divorce, both parents are protected, and the child has the legal protection of both parents. 

Splitopia: You and I have talked before about how people shouldn’t say “gay” divorce, but rather “same-sex” or “same-gender” divorce. Can you explain why this matters? 

MZ: Just look at the language of it. You can marry your best friend, and you don’t have to have an intimate relationship with the friend.  When straight people marry, there’s no question that they have an intimate relationships.  It’s just assumed. It’s so built into our culture. No one makes a straight couple go before a judge and say the last time they slept together. Now it’s the same for gay people. It really is about same gender or opposite gender. I know clients who say, “I’m not gay, but I fell in love with Susie. So Susie and I are getting married.” The terminology is important because that’s part of what we put out in this culture. We never ask these questions of opposite-sex couples, so why should we differentiate between types of marriages? 

Splitopia: We’ve seen articles, like the one a few years ago in the Atlantic Monthly, touting all the lessons straight couples can learn from gay couples about how to have a good marriage. Is there anything that straight couples can learn from same-sex couples in divorce?

MZ: Straight people have never had the experience of having to create a new marriage model.

Straight people don’t have to question the existing models, and much more buy into the adversarial nature of the old-style divorce—the idea that there’s a winner and a loser. I see that kind of fighting much, much less with gay people.

And I think that’s because gay people understand that the law is just a construct. We make it up. They are not, for the most part, interested in being so adversarial. A lot of people end up best friends. I think that because gay people have been so outside of the law for so long, we’ve had to figure out what’s right and what we feel comfortable with.  

Splitopia: Thank you!

To contact Michele Zavos, check out zavosjunckerlawgroup.com.

Read more about same-sex divorce laws in our series, Three Lawyers, One Question. 

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Wendy Paris is the author of Splitopia: Dispatches from Today's Good Divorce and How to Part Well (Simon & Schuster/Atria, 2016). Splitopia and her work on divorce have been covered by The New York Times, Real Simple, The Washington Post, The New York Post, The Globe & Mail, Psychology Today, The Houston Chronicle, Salon.com, Parents.com, Family Law Quarterly, PsychCentral.com and radio and TV shows nationwide. She has an MFA in creative nonfiction writing from Columbia University, and is an advocated for family law reform. She is divorced, and lives in Santa Monica, California, a few blocks from her former husband, with whom she has a warm co-parenting relationship.