The LGBTQ community has always faced difficulty protecting themselves, frequently being 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 begin to solve all problems related to same-sex marriage. Consider that the law only addresses 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 existence of their relationship from the day they were legally married.
So, why is this problematic? If a couple were to go into court seeking a divorce now, having had a 32-year committed relationship, but only legally married for the last 5 years, (which is as far back as same-sex marriage has been deemed legal nationally), the court could only acknowledge the last 5 years of their relationship. All assets, including real estate and retirement assets, that were owned before the date of legal marriage would not be considered marital property and therefore not be accounted for to each of these parties by the courts. 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 between having your relationship treated as a test case in court or having another option, for the LGBTQ community the latter is the better 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 they may not have a clear understanding of the Collaborative process and how it can be applied 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 work with 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 together 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. Until very recently, he courts during the COVID-19 pandemic were closed to all new cases, only handling matters that qualify as an emergency. As a result, we may experience even further delay in resolving these cases through the courts. As society reopens, people may be reluctant to meet in person. In mediation and collaborative, however, parties can make progress on a case remotely, by means of video and teleconferencing.
So why are these alternatives important for the LGBTQ community more than any other community? Simply speaking, these processes allow for dispute resolution without being hampered by the legacy of structural discrimination against the LGBTQ community and their families. 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 to testify about your personal and intimate relationship with your spouse, especially where one runs the risk of losing housing or employment in most states if their sexual orientation or gender identity is openly known. The court is not where you want your or your children’s future to be decided especially by a system that can only consider a fraction of the time a relationship existed and which has not always recognized LGBTQ families.
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.
Parentage and parenting can be problematic is a court system that has not always recognized the rights of LGBTQ “parents” or how a “parent” is defined. Why put yourself, your child(ren) or your family at risk in the court system when there is a confidential and safer way to resolve all legal issues outside the court system where you the parties are in control of the outcome? Mediation and Collaborative processes have helped many LGBTQ families resolve their divorce, custody and parenting issues without the taint of discriminatory treatment. There is a better way and a better path to a holistic solution to all these issues.
Written by Concetta G. Spirio, Esq.