Mediation and the LGBT “Divorce” in New York

by Petra Maxwell on June 18, 2011

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New York State is getting encouragingly close to the passage of a bill recognizing same-sex marriages. But until we actually see a signature on the page, New York (like many other states) does not recognize GLBTQ marriages and unions. This means that if you were married in another state, you can’t get a divorce in New York (or in other states that do not recognize gay marriages). And if you’re partnered in New York and break up, you have no access to the legal system to resolve the issues of your break up.

Mediation is the solution. In mediation you’re not constrained by what your state recognizes or doesn’t and you’re free to discuss and reach agreements about any conflicts that may arise in your relationship. You and your partner can work with a trained, neutral mediator who understands the issues involved in GLBTQ families and marriages. Your mediator will help you work through all of the issues involved in separating and will create a written agreement you both can follow.

LGBT Financial Issues: Joint Assets and Debt Without Divorce Court

When you end your relationship you may have some or all of the following joint assets and debts:

  • Home
  • Cars
  • Investments, stocks, and bonds
  • Credit card bills
  • Mortgages, car loans, home equity loans, and personal loans
  • Household items
  • Unpaid utility bills
  • Degrees or professional licenses earned during the marriage
  • Unpaid taxes
  • Bank accounts and CDs
  • Retirement accounts
  • Collectibles
  • Season’s tickets, frequent flyer miles, family memberships, and credit card points

Because you are not legally married in New York, these items cannot be divided by a divorce court. This leaves your family on its own, unless you turn to mediation. A mediator can help you negotiate a fair and equitable division of your assets, and then can create a binding contract that addresses how all of these items will be divided. He or she helps you work through the negotiations and discussions involved in the very emotional process of ending a close personal relationship.

Custody: Mediation for Gay Families with Children in New York

Mediation is very important for gay families with children, particularly if you are not both legal parents of the children. In this situation, there are no State regulations protecting the non-legal parent. However, in mediation, you are free to enter into your own contract describing your arrangements regarding custody, visitation and child support. The current state law doesn’t really matter as long as your agreement is reasonable and takes your children’s best interests to heart.

On the other hand, if you are both the legal parents of your children, you can get a New York court to enter an order enforcing your custody and child support issues. However, the best way to handle these sensitive family matters is to go to a mediator first to negotiate your parenting, child support and other asset arrangements yourselves, rather than to leave these decisions up to a judge. Then, have the mediator draft the settlement documents, and have him or her file them with the court on your behalf. Your agreement reached in mediation will be approved by the court and entered into an enforceable court order. Only in mediation are you able to work together to come up with a custody and child support plan that fits your family and includes as much detail as you need.

Alimony

Alimony is ordered in divorces to help one spouse get back on his or her feet, and sometimes as compensation for behavior that happened in the marriage. In New York, you must be in a hetero marriage to qualify for alimony through the courts. However, as before, mediation gives you the room to negotiate any financial terms you feel are appropriate under the circumstances and for the sake of fairness. So, if one of you needs some financial assistance in the wake of the separation, your mediator can help you draft an agreement that lays out the terms of the financial arrangement including a payment schedule. Your mediator can also assist you in structuring this so it does not have income tax consequences.

Dissolving a Marriage from Another State

In order to dissolve a marriage that may have occurred in another state or country, you have to follow the divorce procedures set up by that state or country. Most states have residency requirements that you must meet to be able to file. Your mediator can discuss with you how you can meet those requirements and get the marriage dissolved.

Clearly, under New York’s current system, those in GLBTQ relationships face numerous challenges when contemplating a break-up. Until New York State legislation catches up with real life, mediation offers the only compassionate and flexible way for couples to resolve the unique circumstances of their relationship outside of the courtroom.

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