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Gay couples find divorcing has traps

As acceptance for homosexual marriage grows, some couples are running into pitfalls on the other side of matrimony -- splitting up.

By Money Staff Oct 17, 2013 1:05PM

This post comes from Judith Messina at partner site CNBC.com.

 

CNBC.com on MSN MoneyWhen Massachusetts made same-sex marriage legal in 2009, Ron Paul (not to be confused with the politician) and his partner of 18 years traveled from their home in Virginia to the Bay State to tie the knot.

 

Gay couple with wedding rings (© Chris Howey/iStock/360/Getty Images)Last February, after four years as a married couple, they split. Now, Paul wants to get on with his life.

 

He can't.

 

Even though gay marriage is now legal in 13 states and the District of Columbia, gay divorce remains a difficult matter. The first and biggest pitfall that awaits homosexual couples seeking a divorce is that they may not be able to get one.

 

In states like Virginia that don't recognize same-sex marriage, gay couples can't get a divorce. And to obtain a divorce in Massachusetts, Paul or his erstwhile spouse would need to establish legal residency there.

 

Thousands of gay couples may face similar difficulties.

 

Thirty-seven states still don't recognize and, in some cases, ban same-sex unions. They won't grant a divorce for a marriage that, by their rules, never happened. Meanwhile, some states where gay marriage is legal may impose onerous requirements for divorces.

 

"If you're getting married and have to go out of state, you'd better be sure you're going to stay married," said Jennifer Hatch, president of Christopher Street Financial, a New York financial advisory catering to same-sex couples. "A contested dissolution is going to be treated very differently depending on where you are and the judges involved."

 

Same-sex couples, so far, divorce only half as often as do heterosexual couples, according to a study by the Williams Institute, a Los Angeles think tank that studies legal issues related to sexual orientation.

 

That may change as same-sex marriage becomes more common. As more gay couples divorce, the laws will likely catch up -- eventually, experts say.

 

It can't be soon enough for Paul. He owns and operates three beauty salons and a cosmetology school in Virginia, which means he can't move to Massachusetts, even for a limited time. He's also met someone else.

 

"At some point, I would like to marry him, but I can't," Paul said.

 

Nobody wants to end up in divorce. But if you plan to avoid the following legal and financial pitfalls, your path through the process is likely to be smoother—which is in everybody's best interest.

 

Pitfall No. 1: Gay divorce is not legal in your state. Marry in one of the states or other jurisdictions that grant divorces without an onerous residency requirement; these include California, Delaware and Minnesota, as well as Washington D.C.

 

Before the marriage, financial experts suggest writing a prenuptial agreement to settle property and other matters in advance. Every state recognizes such agreements, and even if you can't divorce or face a waiting period, you can settle ancillary issues, including financial matters, and get on with at least part of your lives.

 

A postnuptial agreement can work, too. Check to see the requirements in your state.

 

Pitfall No. 2: Your assets are co-mingled but still not legally joint. A couple that marries after a long period of living together and then decides to divorce may face a difficult property settlement. Because it was impossible for gay couples to legally marry until quite recently, many find themselves in that situation.

 

Again, a pre- or postnup will help. A written agreement that details who owns what and who gets what in the event of a split is essential, especially if one or both parties to the marriage have substantial assets.

 

"All money and property issues can be settled," said Frederick Hertz, a San Francisco attorney who is an expert on same-sex couple legal issues. "You don't need a lawyer, court, or judge."

 

Pitfall No. 3: You cannot agree on custody. Consider the case of New York residents Mercedes Counihan and Molly Bishop, who married in Connecticut in 2009. In 2010, following a meticulous search for a sperm donor who shared Counihan's biracial heritage, Bishop gave birth to their son.

 

Two years later, the two women are battling for custody.

 

Counihan's name is on the child's birth certificate, but she did not legally adopt him, a move that lawyers say would have protected her rights as a parent. Counihan said she has now spent $100,000 arguing for those rights.

 

"When the relationship breaks up and the nonbiological parent wants to share custody [but] the biological parent says no, it's a huge problem," said Joseph Milizio, managing partner at Vishnick McGovern Milizio in Lake Success, N.Y., and head of the law firm's LGBT practice.

 

If you want to avoid a damaging scenario, have the nonbiological parent legally adopt the child at the time of birth.

 

"The number one thing is to do the second-parent adoption," said Michelle Kahn, an attorney at New York-based Kahn & Goldberg and an expert on gay and lesbian family law.

 

"Whether the marriage is recognized or not, that adoption is going to be recognized," she said. "[Non-same-sex marriage states] may not like it, but they're going to recognize it."

 

Pitfall No. 4: You can't find an attorney, financial advisor, or marriage counselor with expertise in same-sex marriage and divorce. Organizations such as Lambda Legal and the National Center for Lesbian Rights can provide information. If you're in a non-same-sex-marriage state, find attorneys who specialize in family law and advisors who handle complex issues, such as estate planning.

 

When it comes to therapists, if you can't find one with experience in treating same-sex couples, interview them up front.

 

"[Find out] their ideas about same-sex couples," said Michael LaSala, a therapist at the Institute for Personal Growth in Highland Park, N.J., and an associate professor of social work at Rutgers University. "And along the way, couples may need to educate the therapist."

 

More from CNBC.com:

37Comments
Oct 17, 2013 1:45PM
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What's the saying? Oh yeah... "Be careful what you ask for, you just might get it".
Oct 17, 2013 2:26PM
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I'd watch the he!! out of gay divorce court!
Oct 17, 2013 6:39PM
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Welcome to the world enjoyed by heterosexual couples.  The Gays and Lesbians had it good and did not realize it.  In the good old days you just kicked the other person out and went on with your life.  Now you must take the pain in the backside just like the rest of us.  Lawyers and government tells you what you must do.  In the end it is the Lawyers who get rich. 
Oct 17, 2013 1:56PM
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At least homosexual divorces should be fairer as they will both be of the same gender and neither can play the gender card.
Oct 17, 2013 2:21PM
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I wonder 10 years from now what the divorce rate for gays will be compared to straight marriages.
Oct 17, 2013 2:15PM
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Ah well.  Not reason to rearrange the laws of a large country just to satisfy 3% of the population, no matter how much money they donate politically.

Oct 17, 2013 3:09PM
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This will be another money maker for lawyers settling up who gets want after they divorce.  Usually the man in a "heterosexual marriage" gets cleaned out financially...how will this be determined in a "homosexual marriage" when both are men?
Oct 17, 2013 2:17PM
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Wow, most couples cited here are looking to divorce after just a few years, and stupidly want to re-marry again. My issue has never been with Gay marriage, etc.. My issue is with our societies acceptance of disposable relationships. If you dont paln on being in it for the LONG haul, don't get married. People do this crap just for the greed of extra benefits.. Have some morals and choose your mates wisely. No one can predict the future but if we as a society have accepted relationships as only lasting 4-7 years tops then marriage should just be done away with alltogether. Marriage has been completely watered down to mean nothing sacred any longer. It has lost it's luster as an institution of respect and love. It is alla convienence thing now to be thrown away when things become difficult or when someone else catches their eyes. Thanks liberals and Hippies for destroying the tradition of marriage longevity and making divorce as easy to get as buying candy.. You will be known as the destroyers of moral decency...

 

Oct 17, 2013 7:27PM
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even the homos will get it in the end (get it? get it in the end)
Oct 17, 2013 2:22PM
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I'm all for gay marriage, but maybe they shouldn't have all rushed and gotten married when it became legal and actually gotten married for the right reasons. And who's to say opposite-sex marriages and a walk in the park to get out of?
Oct 17, 2013 3:52PM
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The divorce rate for gay people is going to be very high.  Straight couples get married for the wrong reasons, but they have their children and other family pressure / standards or their religion to keep them from divorcing.  Gay men don't really love each other and aren't mature enough for marriage, but they did it just because they could.  Gay men are no good at commitment.  They're as immature as teenagers when it comes to relationships, really, and they can't possibly handle a long term commitment.
Oct 17, 2013 2:33PM
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Quickie divorces are available in Mexico.
Oct 18, 2013 8:35AM
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The best ones are the one's who adopt, then they don't want to pay child support because "it's not my real child"  Seriously??   Men have been paying child support forever for kids that everyone knows aren't theirs simply because they lived with a woman long enough.  Ladies and gents, welcome to ex-married life and pay up.
Oct 18, 2013 8:31AM
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Good. They want to be like other couples, they got their wish. With the good comes the bad.
Oct 18, 2013 9:13AM
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Don't worry, gays, Obama will find a way to give you special treatment.
Oct 17, 2013 7:24PM
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Can I be the judge on a new TV show?  Gay Divorce Court.  Mark my words, you heard it here first, somebody will soon do it - and make a fortune!  America is the land of opportunity!
Oct 17, 2013 4:41PM
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Massachusetts made gay marriage legal in 2004--not in 2009.
Oct 21, 2013 2:33AM
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HA HA HA, It was only a matter of time til this became an issue. I have gay friends and I tell them all the time that I hope they can have the right to marry so they too can deal with the misery of divorce. All marriages have good and bad times and our society today doesn't have the fortitude to work thru the issues. Marriage should have remained between a man and a woman, after all its just a legally binded relationship thru the courts, queers should have enjoyed pretending instead of wanting the concrete!
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