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PROBLEMS FACE DIVORCING LGBTQ COUPLES.  Do LGBTQ couples face unusual problems in divorce?

Now that LGBTQ marriages are legally recognized, those couples seeking to divorce are facing unusual problems.  It’s not a subject that marriage-equality groups tend to trumpet on their websites, but gay couples are at the start of a divorce boom.

The U.S. Supreme Court ruling that the U.S. Constitution guarantees the right for same-sex couples to marry in all 50 states paves the way for the dissolution of some of those marriages.  For many this is an unchartered territory.  Some of these divorces are vividly acrimonious and some are just sad and confusing.

Per The Williams Institute, a national UCLA Law think tank dedicated to research on sexual orientation and gender identity law and public policy, the rate of dissolution of legally-recognized same-sex partnerships is roughly comparable to the rate of divorce for heterosexual couples.

Many of these couples will face extraordinary hurdles dealing with custody and visitation issues when children are in the picture.  More likely problems that will face these couples will arise in the area of asset division.

Most states determine property rights based upon equitable principles.  That is, the court tries to be fair to both parties, considering many factors in determining how accounts, real estate and assets will be split.  LGBTQ couples have only recently been able to legally marry.  However, many relationships date back years and years.  For example, a couple who began their relationship fifteen or twenty years ago are likely to have acquired assets in a mix of joint and individual ownership.  Many couples acquired substantial pension benefits, savings plans and other individual benefits well prior to marriage but during the active relationship.   These same couples are now married and their marriage is relatively short compared to the length of their actual relationship.

Thus, many couples will find themselves in a situation where one or other will acquire most of the assets, to the exclusion of the other.  For instance, a teacher living with a domestic partner during a long-term relationship marries.  After a short marriage, the couple seek a divorce.  The non-teacher spouse would not share in the teacher spouse’ pension earned prior to the marriage.  This same situation applies across the board.  For instance, one party is the primary breadwinner and acquires a 401 plan, while the other spouse is a stay at home.  The accrual of marital interest will only attach after the marriage, leaving the non-earning spouse short changed in a divorce.

One way to address this issue is for marrying LGBTQ couples to execute a pre-marital agreement.  These agreements can take into account the relative contributions of each party prior to the marriage and would address the issue of a fair division upon divorce.

Until such time as current LGBTQ marriages have matured, divorcing couples will face a number of financial division hurdles in divorce.

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