Frederick Hertz asks in the Huffington Post Blog Is Gay Divorce Any Different Than Straight Divorce?  He points to three areas where gay breakups are different:  historical legacy, legal complexities, and cultural dimensions.  Historically speaking, same sex couples could not marry until recently in any state.  So, most same sex couples in long-term relationships have spent a good amount of time living outside of traditional marital law.  This means that a same sex couple’s breakup may have some issues that straddle the lines between nonmarital relationships and traditional marital law.  I think Hertz, an attorney in California where gay marriage is recognized, means a situation where maybe the couple gets married in California but owns property in a state that does not recognize their marriage, creating difficulties in dividing assets and such.

The second place that same sex breakups differ from straight divorce addresses the inherent legal complexities in same sex relationships.

For some same-sex partners, the inability to legally marry relegates their break-up to the murky world of non-marital law, which often involves complex theories of equitable partition, implied contracts, and partnership law. It can also create serious problems around the parentage and custody of kids. See www.NCLRights.org for more about those issues. And, even for those whose lives are covered by marital law (because they live in a recognition state and entered into a formal registration or marriage), the lack of federal recognition can create serious confusion or even blatant discrimination. There is no tax recognition of the spousal relationship, and so transfers of assets can trigger capital gains, income, or gift tax liabilities. The ERISA rules preclude the assignment of a pension or retirement benefit, which also can lead to additional taxation and enforcement problems for divorcing couples. Because of the legal complexities, fewer divorce lawyers know how to handle same-sex dissolutions, and so even finding a qualified lawyer can be a challenge.

 

The third difference involves the cultural differences between gay people in general and straight people.  For example, the traditional gender roles that apply (globally speaking) to straight folks may not apply to gay couples.  And, gay people may have resistence to involvement with the judicial system.

My opinion is that every couple, gay or straight, has their own dynamic and set of "issues".  Putting any couple "in a box" of stereotypes is impossible.  Breakups between same sex couples are more complex because, at least in the context of Texas divorce law, there’s very little law that directly defines their relationship or breakup.  The courts have ruled that we don’t have gay divorce in Texas. The most common sensical approach for a gay couple is to solidify their relationship in the beginning with a domestic partner agreement that defines the rules as they apply to that couple and contractually determines how they will break up.  There is also a lot of litigation right now regarding nonparent custody in Texas — including same sex custody suits.  Although the boundaries of when a nonparent may sue for custody of a child that is not biologically or adoptively related to them remain murky, there are an abundance of cases exploring the issues.

Lambda Legal has a great chart that summarizes the current state of affairs for same-sex couples. Check it out at: http://www.lambdalegal.org/publications/articles/nationwide-status-same-sex-relationships.html

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.