Three years after the Supreme Court declared that #lovewins, it’s time to talk about divorce. Considering how unlikely nationwide gay marriage once seemed, the LGBTQ community (understandably) prefers to focus on the pleasant possibilities of matrimony. But statistically, some of those couples will break up. In a post-Obergefell world, gay marriage is the law of the land. And where there’s marriage, divorce sometimes follows.
The legal separation of wedded LGTBQ couples is a social phenomenon that deserves consideration. To quote a 2013 New York Magazine feature on LGBTQ-couple divorce, “gay couples are at the start of a divorce boom. One reason is obvious: More couples are eligible. According to a report by UCLA’s Williams Institute, nearly 50,000 of the approximately 640,000 gay couples in the U.S. in 2011 were married.”
The marriage rate between LGBTQ couples is on its way to achieving parity with different-sex pairings. As the New York story points out, while the first wave of gay marriage proved more durable than straight marriages (1 percent in LGBTQ couples, 2 percent for different-sex couples), that run is unlikely to last forever: “Most lawyers I spoke to assume that the gap will soon vanish, once the backlog of long-term and presumably more stable gay couples have married, leaving the field to the young and impulsive.”
This is unexplored territory. However, there’s a silver lining. As unpleasant as divorce can be in any era, prior to Obergefell, LGTBQ-couple separation was uniquely hellish. In the Defense of Marriage Act era, state differences on gay marriage meant navigating a legal underworld of conflicting rules about pensions, inheritance and ownership questions.
To navigate the world of post-Obergefell divorce, Georgia Voice spoke to Dennis G. Collard, a gay attorney and founder of Collard Shockley LLC, an Atlanta firm that serves the family law needs of the LGBTQ community.
Collard referred to the difficulty of the pre-Obergefell era. Back then, separation was done without the assistance of the courts, “because legally there was not a ‘marriage’ to dissolve.” Although divorce is always difficult, Collard continued, “Full access to the courts is a huge leap forward in the romantic and economic lives of gay people.”
Are there unique pitfalls?
“LGBTQ couples may be surprised by the formality of the divorce process,” Collard said. Before 2015, “unless the couple were the parents of children, there was no intervention by a family court judge — no alimony and no division of retirement accounts or other property.” Post-Obergefell, LGBTQ couples stand on new ground.
“We’ve gone from informal to hyper-formal and it has taken gay people some time to acclimate to this new suite of rights and obligations,” he said. “Before Obergefell, couples who had gone out of state to get married were not considered married in Georgia.”
“With Obergefell,” Collard continued, “couples who had already separated after their out-of-state marriage suddenly found themselves needing a formal divorce. It caught a lot of couples off guard.”
Do’s and don’ts
Regarding do’s, Collard had this advice: “The LGBTQ community has its own customs, traditions and sensibilities. And for centuries those did not include marriage equality.”
The attorney also urged LGTBQ couples to keep an open mind, and have patience with the members of the court, “as they continue to get to know us.” Collard said that he had “found that the courts have been very welcoming to my clients. Regardless of the politics of the issue, I think that most judges were very happy to see this expansion of civil rights. We’ve been making our own rules around long-term relationships for so long, we need to be patient in this transition into marriage and divorce equality. Tell your whole story.”
Regarding don’ts, Collard urged separating LGTBQ couples to not “be afraid to take advantage of every right that Obergefell grants you. As a citizen who is married in a nation with full marriage (and divorce) equality, don’t be timid about telling your attorney that you want a division of property, and potentially alimony, just like any other divorcing couple.”
He said that couples shouldn’t be afraid to seek out a gay family law attorney, if that would make them more comfortable.
“But keep in mind, we have many straight allies who would be very happy to help,” he said.
Collard said that “break-ups have become a lot more formal, and many couples had not planned for the division of property or alimony that comes with divorce. So, there’s been a certain adjustment period that is still in progress.”
Reflecting on the post-Obergefell world, Collard noted that, “With marriage equality immediately came gay people getting divorced. It was like watching our community spread its legal wings. Many gay people, though hopeful, did not expect marriage equality to happen when it did. It was a huge step on a large continuum of rights.”
“Now,” Collard said, “the fight continues, for protections against discrimination in healthcare, housing, employment and many other areas.”