To understand the differences between heterosexual and same-sex divorce, let's look at some facts first. On May 17 th , 2004, Massachusetts became the first state to legalize same-sex marriage. Although other states followed suit in subsequent years, it wasn't until June of 2015 that marriage equality became the law in the United States. Suffice it to say, divorce equality is in its infancy stage.
The right to divorce
In June of 2015, same-sex couples celebrated much more than being able to marry. They celebrated the right to divorce. Many couples throughout the United States waited for years to dissolve their marriage. The state laws being what they were placed these couples at a great disadvantage from their heterosexual counterparts. Can you imagine not being able to divorce and having to put your life on hold indefinitely?
When a heterosexual couple has a child, whether married or not, no one questions the rights of the father. When a married couple adopts a child, their parenting rights are also protected under the law. Unfortunately, that is not the case when it comes to the LGBT community.
So, how is it different when it comes to the parenting rights of LGBT families?
Let's start with the obvious challenges. Same-sex couples have to be deliberate about their actions in order to start a family. When it comes to fathering or birthing a child, only one member of a couple can be the biological parent. Although most couples look for donors that have the same physical features/heritage of the non-biological parent, the only way to be recognized as a legal parent is through marriage. Even when you both make the decision to have a child, only married couples receive legal protection during divorce.
Heterosexual married couples can adopt children. That has not been the case for LGBT married couples looking to adopt a child through an agency. These agencies have historically only issued adoptions to single gay parents. This practice is one of many that will need to change in order for same-sex married couples to each have rights to child custody during divorce.
Much has been written about gender bias when it comes to heterosexual divorce. Moms tend to be favored in child custody cases and fathers are more opt to become the financial providers and/or weekend caregivers. How will this ingrained belief impact same-sex couples? Will the birth mom or bio dad receive preference in child custody cases? Will the non-bio parent be expected to forgo physical custody? How will prejudice in the legal community impact LGBT outcomes in divorce?
It's important to state that organizational reforms inside and outside of the legal system will need to occur to create an equitable environment for divorcing LGBT couples. It wasn't until 1996 that the divorce laws were revised to recognize the contributions of a homemaker. What this tells me is that we are not even aware of all the injustices that are currently occurring. The legal community is using a framework that doesn't fit gays, their lifestyles or the years of discrimination so it will be a long time before we get divorce right.
Marjorie Soto's gay marriage ended in divorce. Marjorie believes that there is a persistent denial that lesbian divorce exists. She blogs about this and other LGBT divorce issues at LifeInJeans.com. She helps lesbians impacted by divorce find community so they don't have to go at it alone. Life in Jeans provides support through real stories and experiences.