In Obergefell v Hodges, the Supreme Court held in 2015 that the freedom to marry was a fundamental right that was also protected for same-sex couples. By 2022, all 50 states now recognize marriage equality.

However, as same-sex couples throughout the nation get the ability to marry (or access civil unions) in an increasing number of states, we are seeing our first glimpses of gay divorce.

Here is what the statistics say so far:

• Currently, the gay divorce rate overall is lower than that for straight married couples (16% compared to 19%). However, the rate for lesbian marriages is much higher within that, at 34% (Pride Legal, 2021)

• Around 20% of same-sex couples have married, formed domestic partnerships, or formed civil unions.
  
• In 2019 there were 543,000 same-sex married households in the US. (census.gov)
   

As the number of same-sex marriages increases in the US, it’s likely that the divorce rate will also increase. 

Why Do LGBTQ Couples Consider Divorce? 

On the one hand, marriage is marriage, regardless of sexual orientation or gender identity. There are many reasons that couples divorce, from money to infidelity (the two big ones) to simply irreconcilable differences. Just as each couple’s love story is unique to them, so are their reasons for divorce.

Individuals in same-sex couples, however, may be at additional risk for social stress in ways that people in different-sex partnerships are not, due to possible discrimination or stigmatization of their relationships.

All these play a role in the slowly increasing divorce rates in the LGBTQ+ community.

Mediation for LGBTQ+ Couples 

When a couple decides they want to divorce, litigation with opposing lawyers is not the only choice. Here are four reasons why same-sex married (or common-law) couples might benefit from pursuing divorce mediation:

1). When determining property division and spousal maintenance, mediators, unlike judges, do not consider how long a couple has been common law or officially married.

Since 2015, same-sex unions have been legal. Any legal same-sex marriage would only be a maximum of seven years long, which is considered short in the world of divorce law. 

This could be unfair to the lower-earning spouse. A divorce mediator advocates for fairness and for the two parties to reach an agreement on maintenance and property division. The two parties agree on the outcome, regardless of imposed external requirements.

2). The court’s determination of who is the legal parent does not affect divorce mediators.

When it comes to determining who is the legal parent in a standard lawyer-led divorce, same-sex couples must follow case law.

If you or just your spouse is the legal parent of your children, the other parent will need to file a paternity or maternity petition to acquire custody and visitation.  

If the other partner wishes to be the child’s legal parent, they must adopt the child legally. And, while gay marriage is legal in all US states, same-sex adoption is not. In a court-driven divorce, the “non-parent” may lose all parental rights to the child, even if he or she has been the main caretaker. 

In contrast, in divorce mediation, issues such as custody and visitation are decided without regard to the law’s definition of who is a “legal” parent. Mediation allows both parties in the relationship to make these decisions.

3). Selecting your divorce mediator is better than having a judge assigned to you.

Not to generalize, but there are people in every field who believe in a conventional marriage. It’s anyone’s guess if a court would regard your common-law marriage the same way they would a heterosexual couple when you’re assigned a judge.

Divorce mediators, on the other hand, tend to come from a range of backgrounds. You choose the right person for the job, and they act as a neutral third party, allowing you greater influence over the divorce proceedings. (At Mediate Divorce, we pride ourselves in our connection to and familiarity in working with LGBTQ+ couples seeking divorce).

4). Unlike an attorney-led divorce, divorce mediation is a private process.

It is no one’s concern but you and your family’s that you are divorcing. 

Your privacy is protected within the mediation room, with no public show or declaration against the other in court. It is the two of you, working together, for a fair and equitable divorce.

Final Words 

At Mediate Divorce we assist all couples in collaborating and respectfully negotiating the terms of their divorce or separation.

Our mediators understand the special challenges that LGBTQ+ couples experience. 

We have the skills and understanding to make our clients feel at ease and to develop agreements that enable individuals to survive after a divorce, while still complying with state and federal tax requirements.