In Honor of Pride Month Attorney Timothy Braughler Discusses Same-Sex Divorces with Ilyssa Panitz
06/20/2023Published in Authority Magazine:
Ilyssa Panitz: Have long have you been representing same sex couples?
Timothy Braugher: I’ve worked with LGBTQ couples throughout my entire 15 years of family practice. This has included divorces as well as prenuptial agreements, adoptions, and donor agreements for couples planning to have children.
Ilyssa Panitz: During a consultation interview with a potential attorney, do you suggest asking each lawyer if they have experience working on a same sex divorce and why is having this knowledge important?
Timothy Braugher: Absolutely. When interviewing potential attorneys, it is critical to inquire about that attorney’s experience regarding any particular or unique issue in your case. Same-sex divorces can present some unique issues, so having an attorney who is experienced in that area is important.
Ilyssa Panitz: What are some of the unique challenges same sex couples face if they are going through a divorce?
Timothy Braugher: With marriage equality currently legal in all 50 states, same-sex divorces are largely treated the same as heterosexual couples. However, financial issues such as property division and alimony can sometimes present unique issues in a same-sex divorce. When the marriage began, and the length of the marriage are key considerations in determining financial issues in any divorce. Divorcing couples who were in a relationship prior to same-sex marriage being legalized in their state have to appreciate how property division and alimony can be impacted by the total length of their relationship versus just the period where they were legally married. Child custody and parenting in a same-sex divorce is another area where there can be nuances that fall outside of what we see with a more traditional heterosexual divorce.
Ilyssa Panitz: You just led into my next question. In Massachusetts where you practice, why does the length of the marriage matter when the parties are discussing property division and alimony, and what if a same-sex couple was together for years prior to their marriage being legally recognized?
Timothy Braugher: Massachusetts, like many other states, is an equitable distribution state when it comes to property division in a divorce. This means that any property either spouse has, regardless of how or when it was acquired can be considered for property division purposes. However, particularly in short or medium length marriages, property owned by one spouse prior to a marriage may be treated differently than property acquired during the marriage. Although Massachusetts has had same-sex marriage since 2004, many states did not recognize marriage equality until 2015 when the U.S. Supreme Court issued its historic decision in Obergefell v. Hodges, which legalized same-sex marriage in all 50 states. For a couple who might have been together and acquired property for a period prior to their ability to become legally married, only looking at the technical length of the legal marriage could lead to an unfair division of property. Similarly, the duration of alimony in Massachusetts and many other states is tied to the length of the marriage. Judges may consider periods a couple co-habitated prior to the legal marriage and add that period of time to the length of the marriage. Therefore, understanding and establishing when that marriage-like partnership began prior to the legal marriage can have a significant impact on property division and alimony.
Ilyssa Panitz: How might custody and a parenting plan be determined for divorcing same-sex couples who share children together?
Timothy Braugher: Things can become tricky for divorcing same-sex couples with children because of the more varied paths such couples take to coming parents. Many same-sex couples rely on adoption, surrogacy, or egg and sperm donation. Individuals in same-sex relationships may have close ties to children whom their spouse had from a previous heterosexual relationship. In Massachusetts and many other states, same-sex couples who are married and have a child together by whatever method, are generally going to be treated as a heterosexual couple with children would. In cases where there is not a biological or adoptive relationship between a child and a party to the divorce, sometimes that individual can find themselves disadvantaged in terms of legal rights to custody and parenting.
Ilyssa Panitz: Are there any other challenges couples should be aware of?
Timothy Braugher: One other issue for same-sex couples to be aware of in a divorce involving children, is that some judges may still carry a more traditional, hetero-normative view of parent-child relationships. This can sometimes result in bias in terms of favoring a biological parent or ascribing traditional male-female gender roles to a same-sex couple. It is important for any attorney representing a parent in a same-sex divorce to be cognizant of these potential issues.
Ilyssa Panitz: Does it matter if a same-sex couple living in one state tied the knot in a different state?
Timothy Braugher: The general rules for getting divorced in a state are the same for all divorcing couples. States have residency requirements that dictate how long an individual must have lived in the state before filing for divorce. For instance, in Massachusetts, unless a couple lived here together and the marriage broke down here, an individual generally must have lived here for one year prior to filing for divorce. Prior to 2015, when same-sex marriage was legalized across the country, many couples traveled specifically to get married in other states where same-sex marriage was legal. However, a couple must still get divorced in the state where they either live together or otherwise meet the state’s residency requirements.
Ilyssa Panitz: What if one side in the divorce does not identify with a particular gender, does that pose any added challenges to dissolving the marriage?
Timothy Braugher: For non-cisgender individuals divorcing, many of the same issues we’ve discussed for same-sex couples apply. Biases amongst not only judges but family law practitioners can be amplified. Transgender individuals may face hardships, particularly in terms of child custody and parenting issues. For instance, in a marriage that has broken down due to one spouse’s decision to transition, a vindictive co-parent might try to weaponize the spouse’s transition as something harmful to the children. While this is not a valid legal rationale that should affect custody or parenting decisions, unfair biases within the courts and in general against transgender individuals can unfortunately arise.
