Born This Way: Mediation & Collaborative Divorce Processes in the LGBTQ+ Community
Updated: Apr 11, 2022
The LGBTQ+ Community has always faced difficulty protecting themselves, frequently denied rights usually taken for granted by the general public. Before the legalization of same-sex marriages, same-sex couples and their families had to cobble together a patchwork of legal documentation to obtain some of the legal protections afforded to opposite sex couples able to legally marry. Suffice to say, the legal system historically has not been kind to the LGBTQ+ community.
Once same-sex marriage became legalized across the United States (June 26, 2015), many people thought this solved all legal troubles facing the LGBTQ+ community. Truthfully, this didn’t even solve all problems related to same-sex marriage Consider that the law only deals with matrimonial issues from the date that a legal marriage occurs. Many in the LGBTQ+ community have been in long-term relationships far longer than the availability and existence of same-sex marriage. However, the law will only recognize the relationship from the date of a legal marriage.
So, why is this a problem? If a couple were to go into court now, having had a 32 year committed relationship, but were only able to be legally married for the last 5 years, (keep in mind that same-sex marriage was federally legalized in 2015), the court could only acknowledge the last 5 years of their relationship. All assets, including retirement assets that existed before the date of marriage would not be considered marital property and therefore not be accounted for to each of these parties. Obviously, this could have a disastrous effect on a couple that had planned their financial future together with their joint retirement in mind.
When given the alternative to having your relationship be treated as a test case in court or having another option, I would certainly choose another option. That is why Mediation and Collaborative divorce processes, providing resolution of conflicts outside the court system, are extremely important to the LGBTQ+ community. Most attorneys and the public are familiar with Mediation, however most people, including attorneys, do not have a clear understanding of the Collaborative process or how it can be applied to not only to matrimonial conflicts.
Like Mediation, the Collaborative process is an alternative to resolve a dispute. While Mediation involves a neutral third party helping two sides come to a resolution, in the Collaborative process, parties have a collaboratively trained team of professionals. This team approach not only involves collaboratively trained attorneys but also collaboratively trained financial and mental health professionals, who work as a team to help both parties reach a mutually agreeable resolution. It is not merely a “Settlement Conference”.
The process is focused on the needs, wants, and concerns of the clients. For a divorce, the process is focused on helping the couple and family move forward in a more holistic approach.
Now more than ever this process is crucial to couples facing conflict.
So why are these alternatives important for the LGBTQ+ community more than any other community? Simply speaking, these processes allows for dispute resolution without being hampered by the legacy of structural discrimination against the LGBTQ+ Community. The Collaborative process also affords anyone going through a conflict, complete confidentiality. Further, the parties never have to step inside a courtroom to resolve their dispute.
In addition, the terms of their resolution and all the paperwork filed with the Court are confidential and not of public record. There is nothing more traumatic than appearing in open court and having to testify about your personal and intimate relationship with your spouse, especially where one can lose housing or employment in most states if their sexual orientation or gender identity is openly known. It is not where you want your or your children’s future to be decided especially by a Court that can only consider a fraction of the relationship’s existence.
The public does not understand how emotionally and financially hard it is to go through the Court process, especially in Family Court, where you are dealing with, not only spousal relationships but parental relationships. The last place anyone should want to be, is in the Court system. This is extremely and especially true for the LGBTQ+ community and their families, where the courts’ history of acknowledging these family units is spotty at best.
Email us at email@example.com or give us a call at 631-759-5599 today to chat about your options.
Your family deserves the best.
Your family deserves collaborative.
Written by Concetta G. Spirio, Esq.