LGBTQ+ families often face unique issues in divorce. While certain matters cannot be adequately addressed in litigation, collaborative divorce offers creative solutions that might not otherwise be available in the courtroom. This form of alternative dispute resolution allows the parties in a divorce to use a team of experts to help them achieve their objectives and maintain amicability throughout the legal process of ending their marriage. Rather than let a judge decide the outcome of their case, spouses who participate in collaborative divorce can find viable solutions that work for their family — and address the unique challenges LGBTQ+ married couples face.
Specifically, the collaborative divorce process can help LGBTQ+ families:
Divorce is not one-size-fits-all. While LGBTQ+ couples face many of the same issues when divorcing as heterosexual spouses, they also have unique needs — especially when it comes to matters such as spousal support and co-parenting. The collaborative divorce process allows for tailored solutions which might not be achieved through litigation. With the collaborative process, spouses can assemble a team of professionals based on the specific matters that must be resolved in their case and explore options that best address their circumstances.
In contrast with the adversarial litigation process, collaborative divorce focuses on open, honest, and respectful communication. Spouses have an opportunity to express their concerns, goals, and needs to each other with the support of the collaborative team, with an added focus on listening and seeking to understand. This creates a cooperative environment where spouses can focus on problem-solving and work to craft an agreement that meets both their needs and interests, as well as for children, if they are involved.
Unlike court proceedings, which are open to the public, collaborative divorce allows LGBTQ+ couples to end their marriages privately and keep personal matters confidential. For example, the collaborative process can help avoid unnecessary public exposure regarding gender identity and complex family dynamics. Collaborative divorce can also keep financial and business matters confidential since they do not need to be discussed or filed in court, with attention during drafting to keep financial details confidential.
Traditional divorce litigation can be stressful, emotionally overwhelming, and costly. The collaborative process minimizes conflict and financial strain, leading to a smoother post-divorce transition for the spouses with less of an impact on their mental health and economic situation. Importantly, when parents are less stressed as they go through the divorce process, they can ensure their children are exposed to less conflict — and help them feel more secure during the period of change.
Many divorcing LGBTQ+ couples have lived together prior to marriage, particularly when couples couldn’t legally marry. This means they may have accumulated a considerable amount of property that would otherwise be considered “separate property” under the law, which is not subject to division in divorce. The collaborative process can help spouses address these nuanced matters and allow them to reach a fair settlement that works for their family, if both people see this as an important issue. The outcome that is achieved through the collaborative process may look very different from the determination a judge would make in litigation.
By emphasizing open communication and mutual respect, the collaborative process allows spouses to part ways more peacefully. Keeping the divorce process low-conflict can be particularly important for LGBTQ+ couples who share children and will be co-parenting, or those who wish to continue a friendship even though the romantic relationship is over. In addition, avoiding unnecessary stress in divorce can reduce the potential for long-term emotional damage such as depression and anxiety — and ensure spouses experience a less emotionally draining separation.
LGBTQ+ parents may face a variety of challenges when it comes to parenting time and parental rights. For instance, if one of the parents is not the child’s biological parent and legal parentage wasn’t established, they would have no parental rights. In other cases, a child may have been adopted or conceived through assisted reproductive technology. While these situations can be legally complex, in a collaborative setting, parents can craft a parenting plan that ensures the best interests of their children come first — rather than rely on a judge to make a decision that will impact their family for years to come.
One of the biggest advantages of using the collaborative divorce process is remaining in control of the outcome. This can give LGBTQ+ couples the flexibility to decide the important matters in their divorce, rather than let a judge who does not know them or their family determine these issues. By controlling the narrative of their divorce, spouses are often more satisfied with the results, reducing the likelihood that they will return to court after the final judgment has been issued.
Divorce is always difficult — but it can be even more legally and emotionally complex for LGBTQ+ couples. If you are in a same-sex marriage and considering parting ways with your spouse, it’s essential to have an attorney by your side who understands the unique considerations faced by spouses in an LGBTQ+ divorce.
Louise Livesay is a family lawyer who practices in the Twin Cities area and has helped families resolve disputes respectfully and peacefully out of court for more than twenty years. If you would like to learn more about collaborative law, divorce mediation, or another family law issue, please contact us online for a consultation or by calling (651) 344-6100. We are available to meet in person or via Zoom, regardless of where you are in Minnesota.
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