Divorces and custody battles for gay couples are more costly than for straight couples.
First, there is the actual creation of the wheel. Laws need to be modified to acknowledge the reality of the new family dynamic. Time is money. Gay marriage created a lot of new businesses and sadly divorce is the ugly alternate twin. There are complicated issues surrounding gay divorce or custody disputes that have not been flushed out by cases or statutes. This makes divorce for the LGBT community very expensive. The law, the Courts, nor the attorneys are prepared for the different issues that arise for gay couples in divorce or custody battles. It is baffling and counter-intuitive how gay couples have been treated in the Courts.
I walked into the courtroom never second-guessing my love of my daughter and that I was one of her parents but I have been challenged all along the way and treated very harshly. Though I was successful and was awarded custody, even though I am the non-biological parent, it was very expensive. I did adopt my daughter and that process is also expensive, but necessary. Had I not, I might not have ever seen her again. I highly recommend that a second parent adoption takes place even if you’re married. Second parent adoptions cost approximately $15,000. This is an undue burden not shared by straight couples.
It’s important to note that members of the LGBT community fought long and hard for the right to marry but with that right, there was not an automatic right to get divorced. Caveat; choose well because you could be tied to that person forever. The right to marry is a State right and accordingly marriage and divorce are treated differently in each state thus causing much confusion and chaos. Some states, for example, do not allow the non-biological parent to have standing in the Court to seek custody. The Court may not recognize second parent adoption. So if you move to a state that does not recognize your parental rights, you will be forced to litigate that issue first even before you litigate the substance of your rights to custody. These types of arguments in Court are very time consuming and time-consuming means large legal bills.
When deciding to get married and/or raising a child together there are ways to protect yourself in the event of divorce. I know it’s not the best time to think about such a negative event, but being practical in the beginning could save you from tremendous heartache later. You could sign a prenuptial agreement that articulates specifics on how property is divided in the event of a breakup.
Out of Court settlements are much cheaper than dealing with the Courts and there is a better chance that you would get a more fair deal, at least one you can live with. Having a judge decide your destiny is not in anyone’s best interest and because parties are never happy the legal wrangling can continue until your child is 18 or 21 years, old depending on the state.
No matter what state you’re in, same-sex partners can still be subject to a federal gift tax when they transfer property or assets worth more than $14,000 to one another in a divorce. Opposite-sex married couples don’t have to pay this tax when dividing assets.
The lawyers are swimming in jello trying to make sense of the old standards and how they apply to the new family reality. The mantra should be changed. It should be what’s in the best interest of the family, and not just the child. That would encompass the family as a unit. This would also probably make for more consistency in the law and how it’s applied to all families gay and straight alike.
Changing standards in court take a lot of legal time because all sensibility is thrown out the window and old standards and thresholds don’t go away so easily. The old-standards disregard the new family dynamic. The Courts are going through contortions to figure out what is right in front of them. Gay families are just like straight families. They started by love and end, well, usually by the opposite. But the rights of parents to the children shouldn’t be construed differently. Both parents should be considered legitimate parents regardless. The threshold requirement for the second parent adoption is unnecessary. Old prejudices create costs.
Justice Kennedy mentions the word dignity in the Windsor decision where he granted the gay community the right to get married. He gave us the dignity of equality. It didn’t necessarily translate into the dignity in getting divorce.
Allison Scollar is a Real-Estate Broker with Keller Williams in Tribeca New York. Her custody battle highlighted broke ground in that it highlighted antiquated Court’s approach in dealing with same-sex divorce and non-biological child custody.