Gay Divorce Tips

Children and Gay Divorce

As with any dissolution of a marriage, any children involved in the family (often referred to as "issue," in legal terms) will need special consideration. With heterosexual couples, the family court system will determine which parent should get custody and/or if both parents should work out visitation schedules.

Same-sex couples will face a similar situation, but in the event that you are not the biological parent or a legal guardian of the child or children, you may face losing rights. Be sure to have established your roles as guardians legally before the event of a divorce in order to avoid future strain on your relationship with your children.

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Grounds for Gay Divorce

Generally speaking, there are two established grounds for the dissolution of gay marriages (also called "civil unions"):

1. The marriage can be determined as "irretrievably broken."
2. One of the members of the couple is determined to be "mentally incompetent."

Keep in mind that your local laws may have slight variations on these two grounds. Your attorney will be able to guide you toward the proper direction for the grounds of your divorce at your first meeting with him/her, based on your explanation of the reasons you and your partner are separating.

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The First Step to Gay Divorce

Once you and your same-sex partner have decided that your marriage is no longer working and a divorce is inevitable, you'll need to take the first step to dissolving your union. Both members of the couple must be living in the same state where the union was established. Wherever you first submitted your certificate for civil union, go to (or contact) that town clerk to request a divorce certificate.

Bonus Tip: Many local town clerk offices will allow you to download a divorce certificate from the Internet, so be sure to search online to save yourself the added step.

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Serving Divorce Papers

After you and your same-sex partner have found representation -- preferably through an attorney who specializes in not only family law, but who is also familiar with the dissolution of same-sex unions -- you will need to serve your partner with divorce papers.

This is not something you will need to do personally. Your attorney should be able to arrange the serving. Be sure, however, that the documents are correct before having your partner served. Make an appointment with your attorney to go over all the papers beforehand.

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Ending a Gay Marriage

If you and your partner have established yourself as a married couple -- even through a Common-law union -- your divorce will perhaps be more "legal" than the marriage itself. In this country, the division of shared property must still be established by legal means.

You and your partner will be advised to get separate attorneys to handle the official disbursal of possessions. While your marriage will not need to be dissolved in a legal way per se, your shared assets will need to be legally divided.

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Unmarried Gay Relationship Split

Gay culture has a history of relationship ending without the guidance of family statutes and law courts. This means there are resources in gay culture that you can use to settle your break-up amicably and without the need to approach the authorities as with gay divorce.

Gay couples do not necessarily have the same rights as heterosexual couples when it comes to de facto, or common law, relationships, as committed cohabiting relationships are normally called. Likewise, a partner in a de facto relationship does not have the same rights as a spouse in a marriage when the relationship breaks up. It may not be possible to access an equal split of assets in these cases.

One important difference between the break-up of a de facto relationship and a civil union or marriage is the consideration of future needs of partners. De facto partners may not get maintenance payments from their partners, and those who have looked after the home and children may not receive consideration for the work they put in to the partnership.

Investigate your local laws to find out your options. If no other options are available, civil courts are a good last resort to resolve a civil dispute.

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Gay Divorce in Canada

Although gay marriage was legalized in Canada in select areas from 2003, gay divorce was not legalized until 2004.

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Divorce Procedures

Divorce, like marriage, is a legal action and must be approved by a court of law.

Divorce law varies from country to country, so it is important to contact local authorities for precise information on how to obtain a divorce. In most laws, couples who wish to divorce must undergo a separation period and provide reasons that the divorce should be granted, although the most commonly used reason is 'irreconcilable differences.'

Canada 's constitution states that divorce is the realm of the federal government. After gay marriage was introduced in Canada the divorce law posed a problem, being designed for opposite-sex couples. In 2005 a judge found that the divorce law was discriminatory and allowed gay marriage divorce.

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Counsellors

Before considering divorce or break-up for a committed gay relationship, it is always a good idea to try counselling. Most marriage counsellors also offer counselling services to gay and lesbian couples who have been in a committed relationship and are considering gay divorce. Most resources that target married couples who are going through a troubled period recognize that a committed gay relationship is equal to heterosexual marriage, so look out for those counselling centers and relationship resources.

Many therapists will include marriage counselling in their list of specialities. If you wish to discuss your relationship problems without your partner, keep in mind counselling hotlines. These are a good resource to access support if you have an immediate need, and there are many gay or lesbian-specific numbers.

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Assets in Divorce

When any couple ends a committed, cohabiting relationship, rights to property and any other assets must be decided. In all opposite-sex relationships, including unmarried couples living together, partners have the right to an equal share in property unless there has been a prenuptial agreement. With gay couples, the law is less established, but follows the same lines.

The dissolution of civil unions has resulted in palimony cases, which have allowed a less-earning partner the right to maintenance. Gay marriage has not been established long enough for regular legal gay divorce procedures to be in place, but the precedent of palimony in civil unions will inform decisions on whether you are entitled to palimony.

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Pet Custody in Divorce

Pets, as animals, are generally considered property. However, civil courts recognize that pets and owners have an emotional relationship, and it is possible to sue for custody of a pet in divorce court during a gay marriage divorce. Rights to custody and access visits to pets vary from country to country, and mostly depend on precedents set by other concerned pet owners. It is a good idea to read up on previous cases where custody of a pet was awarded in a divorce court in your area, in order to have reasoning to argue in court.

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Children During Gay Divorce

In many countries, the break-up of a marriage is handled through the family court system. The family court have established guidelines and laws to organize custody of children in the case of a gay divorce, which usually take into consideration the happiness of the child and the importance of access to both parents.

If you do not have legal parental rights to the child, it is possible that a court will rule for custody in favor of the partner possessing parental rights. It is important to establish legal rights to your child while still in the relationship, whether the child has been adopted or is the biological child of your partner.

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Divorce Statistics

Gay marriage is too recent a practice for divorce statistics to have been established. In opposite-sex marriages, the divorce rate is generally lower among communities whose religion discourages divorce.

In America, there were 7.5 new marriages and 3.8 divorces per 1,000 couples in 2003. A 2005 study found that 60 % of all marriages ended in divorce in the first decade, and more than 80 % in the first 20 years.

In the Netherlands, where gay marriage has been legal since 2001, gay and heterosexual divorce rates are equal at 1 %. This is the most reliable statistic so far, as the Netherlands was the first country to legalize gay marriage.

Although statistics have yet to emerge, there is no reason gay marriage divorce rates should be vastly dissimilar to heterosexual divorce rates.

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