Divorces and custody battles for gay couples are typically far more costly than those undergone by 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 business, and sadly, divorce is the ugly alternate twin. There are complicated issues surrounding gay divorce and custody disputes that have not yet been flushed out by cases or statutes. This makes divorce for the LGBT community very expensive.
Neither 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 counterintuitive 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 each step of 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 privilege, there was not an automatic allowance to divorce. 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, 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. 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 marry and/or raise 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 can plan ahead by signing a prenuptial agreement articulating specifics of how property should be 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 you will get a fair deal—or at least one you can live with. Having a judge decide your destiny is not in anyone’s best interest, and legal wrangling can continue until your child is 18- or 21-years-old, depending on the state.
Additionally, same-sex partners may be subject to a federal gift tax upon transfer of 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.
Out-of-court settlements are much cheaper than dealing with the courts, and there is a better chance you will get a fair deal—or at least one you can live with.
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 to take into account what's in the best interest of the family, not just the child. This would encompass the family as a unit—and would likely make for more consistency in the law and how it’s applied to all families, gay and straight alike.
Changing standards in court takes 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 courts are going through contortions to figure out what is right in front of them. Gay families are just like straight families. They started through love and end, well, usually due to 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 same dignity of divorce.
Written by Allison Scollar
Allison Scollar is a real estate broker with Keller Williams in Tribeca, New York. Her custody battle broke ground in that it highlighted the court's antiquated approach in dealing with same-sex divorce and non-biological child custody.