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Issues in Same Sex Divorce Part II: Use Mediation to Divide Your Assets Carefully

Disclaimer: This article does not constitute legal advice. If you have any questions about your individual situation it is best to seek the advice of an experienced legal professional.

In 2015, the Supreme Court legalized same-sex marriage. And since then we’ve seen a lot of progress for non-traditional couples and families, but unfortunately same-sex couples still face different realities than heterosexual couples. It’s with these realities in mind that we explore ways mediation can help same-sex couples to get a better divorce. When dividing your assets in California, the rule of community property applies. Property owned within a marriage is divided equally. But what if you’re a same-sex couple who have been in a domestic partnership for years before same-sex marriage was legalized? There are certainly ways that these partnerships can be considered, but same-sex couples face a minefield of variables and uncertainties when they conduct their divorce through the legal system. As always, it’s important to consult a qualified legal professional before deciding what to do about your divorce (please see disclaimer above). However, at Boileau Conflict Solutions, we can discuss what a flexible divorce outside litigation would look like. We apply our backgrounds in the law, finance, mathematics and psychoanalysis to a variety of solution-sets that can help you negotiate your ideal divorce settlement. Mediation works well for cases with complex financial considerations, as parties are in control of their assets and can make the best of them through careful planning.

So what are some of the issues same-sex couples may face in the financial side of divorce?

What Property You are Entitled To

Dividing up what you are entitled to in same-sex marriage can be a minefield. Partnerships other than marriage can be recognized in some states and some are even converted to marriage, but this presents a difficulty too, because the couple may be in conflict about when their partnership formally commenced. If you live in a community property state like California you might also be unaware that you could be responsible for your partner’s debts as well as entitled to their assets. Overall, the determination can be a more complicated one than with an opposite sex couple. Because of this, it’s highly recommended that you take two additional precautions when you’re negotiating property division in same-sex divorce: one, reduce conflict if at all possible, and two, hire divorce professionals who have financial expertise. At Boileau Conflict Solutions we have financial as well as legal, mathematical and psychoanalytical backgrounds. We use mathematical tools to help divide assets fairly. Once conflict resolution is focused on clear and practically achievable goals, it’s easier to work together and avoid dispute.

Issues over Your Legacy and Estate Planning

If you are in a same-sex marriage you may have children and want to make sure they are protected after your divorce. Opposite sex couples may have to ask themselves one of the questions same-sex couples consider: “Have I changed my beneficiaries?”, but when’s the last time they had to ask “Am I really divorced?” or “Are my children legally my own?” Civil unions and domestic partnerships might not be recognized in states, so they aren’t dissolved. Also if your children aren’t biologically yours or legally adopted, it might be more difficult to pass an inheritance to them. If you don’t want conflict and unforeseen consequences, you will need to examine the full landscape of your partnership history and your status as a parent. Reducing conflict and involving your divorcing partner in mediation means you have more control over your legacy.

Spousal Support and Retirement

Spousal support depends on the length of partnership, but again, this may be more fluid for same-sex couples depending on what types of partnership they have opted for. Sometimes prior domestic partnership arrangements are recognized (it depends on what state you live in). You might also have to look at when Social Security entitlements kick in, and time your divorce accordingly. As a general rule, if you’ve been together a long time and have mingled your finances, it’s even more necessary to seek assistance, remain conflict-free and not rush your divorce.

At Boileau Conflict Solutions, we use mathematical tools to calculate property division, and psychoanalytical approaches to reduce conflict and access a couples’ deeper interests and needs. In divorce mediation it’s easier to come to a resolution that reflects a complicated life than leaving the law to for same-sex divorce. Mediation also supports couples in negotiations with each other so that one half of the couple doesn’t feel at a disadvantage. In same-sex couples there may be arbitrary legal and emotional reasons why one partner is in a weaker position (if they’re a non-biological parent for example), or due to lower income. Mediation facilitates partners in a divorce to access the solutions they want and need and not be barred from progress because of conflict. We have offices in Boulder, CO, Campbell, CA, Irvine, CA and Beverly Hills, CA. We are available 7 days a week and at urgent notice. Please visit us or get in touch via telephone, Facetime or Zoom.

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