LifestyleWedding Guide

How to Handle a Same-Sex Divorce

Advice from the experts.

Todd looked across the room at Conner. They had dated and lived together for almost 15 years, but things had changed. Sure, he loved Conner, but that wasn’t enough. It just wasn’t working any more. The temporary excitement of their long-awaited legal marriage hadn’t taken away the issues the relationship had had for years. The coronavirus pandemic only compounded the problem. Counseling hadn’t helped. Now, with the holiday decorations put away and Valentine’s Day over, Todd knew it was time to have “the conversation.”

The questions just rolled out: What was the next step? One of them needed to move out, but to where? What about the retirement fund they had built together? How was Todd, with his recent health scare, going to get health insurance after he was dropped from Conner’s employer’s plan? Divorce seemed inevitable, yet the questions were overwhelming.

Divorce among same-sex couples has become commonplace. According to Houston family attorney Jacquelyn Smith, “Being a same-sex couple doesn’t change the dynamics of a family. Everything that comes with family—such as joys, friends, managing money, and even children—are all the same.” Yet, some of the divorce issues a same-sex couple encounters are unique. And as these unique legal situations are brought before family-court judges, the courts are making decisions that are creating new case law in Texas.

Divorcing couples have to find the path that works for them. Divorcing without an attorney may be a viable option if there’s no money, children, or real estate involved, but that can still be a rocky road. Whether you have a little or a lot, you’ll likely benefit from having an attorney—and specifically, a family lawyer who specializes in divorce.

Today’s family lawyers have two different approaches to divorce: litigate or collaborate.  Commonly, divorce is litigious, meaning that each person hires an attorney and the attorneys fight it out. If you and your spouse are able to talk through the issues, collaborative law is the friendly (or at least non-combative) method to divorce. Ironically, couples who can’t get along in marriage will often get along in divorce.

Collaborative law requires that all parties sign a contract and agree to full disclosure with one another. Smith cites one case where a spouse asked for copies of all credit card charges with details of gambling debts and shopping trips. Another wanted to know the names of all the people the spouse cheated with during their marriage.

“There is no discovery in collaborative law,” Smith explains. “Both spouses are committed to the process, and give information to settle things amicably. Collaborative law can cost less money than the litigious alternative, but the real savings is on the emotions. It’s much less taxing.” Less fighting, less money.

Couples who choose the collaborative method will engage more with financial experts, counselors, and mediators. Lawyers can then take more of a back seat as guides and facilitators. Financial expert Laury Adams, of Adams Mediation & Financial Resources Center, works with divorcing couples using collaborative law. She finds that many same-sex couples began their relationships many years before they were married. Some have kept their assets and credit-card accounts separate, while others have commingled their financial lives.

In a collaborative divorce, couples are encouraged to be forthright with all their finances and needs. According to Adams, “Spousal maintenance [alimony] is not as expected in a same-sex divorce as in a heterosexual one.” The couple can agree to work together to unravel their accounts and create two new financial worlds.

But if a serious roadblock arises in the collaborative process, the collaborative lawyers must resign and the parties must start over with divorce litigators leading the way.

One thing that can greatly complicate a litigious divorce for same-sex spouses in Texas is the issue of “common law” (or “informal”) marriage. Texas law holds that two people who live together as a committed couple are in many cases “common-law married.” According to family lawyer Vonda Covington,
“[You have a common-law marriage] if you meet the three-pronged criteria: (1) you hold out to the community that you are married [by telling others], (2) you have the intent, and agree, to have a marital relationship, and (3) you live as a married couple with a sexual relationship, [or even just] call someone “my partner” or “my ol’ man.”

Covington points out the multiple questions that now arise: “If they had been living together, was it a common-law marriage? Are some of the earnings and assets earned now retroactively community property? When
did the marriage actually start?” And, if you got a license for a traditional marriage or married out-of-state before it was legal in Texas, what is the legal starting date of the marriage? That starting-date issue can change many outcomes in a divorce situation. Covington suggests that a couple file a Declaration of Marriage after marrying, stating the actual starting date of the marriage.

These are all new questions and situations that have never been heard by the family courts, and same-sex couples need to be aware of this evolving legal landscape. Joe, a recent newlywed, explained that getting married created a lot of interesting things to consider: joint bank accounts, wills, blended families with children, adoptions, sperm or egg donors/carriers, tax benefits, and health and life insurance plans. He and his husband are both successful and came to the relationship ten years ago with their own assets. “No one expects to get divorced, but it happens,” he explains. “The thought of unraveling all of these different ties—and adding the implications and consequences of a retroactive common-law marriage—make the path a little murky.”

Janet Friedman, of J Friedman Mortgage, has worked with both collaborative and litigating lawyers. She finds it important for property owners to know their options. “Often, there are community debts such as a car note or credit card that need to be paid off,” Friedman says. “Or in a time crunch, a house isn’t refinanced because the couple was waiting to finish school or retire. The couple is still tied together, and too often this is a nightmare in the making. One spouse doesn’t pay, for a lot of different reasons. The other spouse is at their mercy to pay timely and not suffer a ding on their credit.

“Divorce-settlement loans are available where one party buys out the other, giving the departing spouse money-in-hand to move on, or to get one person off of the liability of a note. When one person doesn’t make a payment on time and the other’s credit score falls, you know the end of that story.

“Creating two distinct and separate financial worlds takes some effort, but the results are worth it,” Friedman explains. Real estate is often the largest asset a couple has, other than a seasoned retirement account. Couples in a hurry to separate will cash in those retirement accounts to pay off their debts to each
other. Getting money back into a retirement account takes time and has limitations. Those dollars are hard-earned dollars. Using their real-estate equity as a source of cash is often a better option,” she believes.

Friedman cautions that divorcing couples must consider the tax implications, cash flow, and future needs. A quality global settlement in the divorce process takes all of the facts into account.

“Just remember to have the attorney put all of the details in the original decree,” Friedman adds. “Coming back later for those changes is a problem.” She notes that spouses should plan for a divorce with the same gusto that they had for planning their wedding.

When the love is gone and only the legal ties of marriage remain, there can still be some hope for making a clear and clean split without the financial devastation that everyone fears.

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This article appears in the April 2020 edition of OutSmart magazine.


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