Marriage Equality Not the Same Thing As Divorce Equality for Gay Couples

It’s evident, if you’re actually part of the queer community instead of just someone reading the headlines, that even the biggest strides towards equality often leave big gaps in our actual experience compared to straight people. For instance, even though DADT has been repealed, that doesn’t mean same-sex partners of service members are eligible for equal benefits. And while the fact that more states have legalized marriage equality is a good thing, the same kind of progress hasn’t been made on the legal aspects of marriage after the wedding. That goes for everything from paying taxes together to raising children together to, sometimes, divorce.

Katie Marks and Dese’Rae Stage’s wedding. The couple is now divorcing.

As the Atlantic’s profile of one lesbian couple undergoing a divorce after being legally married in New York explains, while the process of divorcing is painful for any couple, it’s like negotiating a wilderness totally alone for gay couples. In many states, gay divorce isn’t legal and simply; couples who have found themselves having to travel to other states to get married now find themselves “wedlocked,” and unable to legally separate. And it gets even more complicated than that. While processes and legal precedents exist for dissolving all the financial and concrete parts of a heterosexual marriage, most couples have no resources for what to do about 401(k)s or shared possessions. And while some divorces are amicable and equitable, and some couples take care to work together and split everything up as equally as they can, it’s also very possible to use the fact that gay relationships aren’t legally recognized to make a messy and painful process even messier and more painful.

There’s what the law requires and what law and ethics require. Plenty of people take homophobic positions, using the law to their advantage.” She adds, “The kid thing is the heartbreaker. A biological mom saying, thanks for everything, you’re out of luck,” to her former partner, who has no legal rights to the child. Or, with a 401(k), she explains, “there’s a mechanism for dividing that asset upon a heterosexual divorce,” but it does not exist for gay couples even in states where their marriages are recognized.

There are some tools at a same-sex couple’s disposal, but as is the case with many aspects of queer relationships, they’re things we have to take responsibility for putting together ourselves, instead of having institutions already in place. A prenup is a good step for a lot of gay couples who are getting married, and there are tools being created to serve the community where the legal system doesn’t. But for the most part, same-sex couples, even ones who have been legally married, find themselves in a lawless netherworld wherein even and especially in our lowest moments, we have no recourse to a larger system, no guidance about what to do or where to go, and ultimately, no respect for our relationships or their end.

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Rachel is Autostraddle's Senior Editor and the editor who presides over books and news & politics coverage. Originally from Boston, MA, Rachel now lives in the Midwest. Topics dear to her heart include bisexuality, The X-Files and tacos. Her favorite Ciara video is probably "Ride," but if you're only going to watch one, she recommends "Like A Boy."

Rachel has written 760 articles for us.

17 Comments

  1. Thumb up 4

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    YAY A POST ON AUTOSTRADDLE HAPPENED!

    In other news, I think this is an often overlooked but really important problem. It also ties into domestic abuse in queer relationships, I think – say you’re one of those “wedlocked” folks and your spouse starts physically assaulting you. Eesh.

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    So unfortunately relevant to my interests right now. Thankfully I’m not in the situation of being unable to divorce as our marriage was never legally recognized at all (we had a ‘fuck it, we’re doing it here anyway’ ceremony) but sorting out finances/insurance/assets is a bitch when you’re in a weird grey area where your relationship is legally recognized but a lot of service providers don’t really know what to do with you/what the legalities are.

    Incidentally, the reign of terror that is current happening in Queensland has not only said they’re amending civil union laws to allow ‘registration of relationships’ but not ‘state sanctioned ceremonies’, but That they’re planning to ensure gay couples relationships are dissolved through Births, Deaths & Marriages office rather than the courts. Because (here’s the kicker!) court proceedings make it look to much like the end of a straight marriage. Kick ‘em while they’re down, huh?

    (also yay! Pictures! New articles!)

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    Totally covered this in law school and it broke my brain. I feel like the states without gay marriage are basically saying “I told you not to put your hand in there, and now that it’s stuck I’m not going to do anything about it, even though I’m holding this saw. And just for good measure, told ya so.”

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    I’m really glad to see this finally being discussed on AS (unless I perhaps missed were it was discussed before. I have been telling friends about this for some time now because going out-of-state to marry your partner can have plenty o disastrous consequences. A close friend of mine is planning on marrying her girlfriend out of state and their relationship is not only young, but also rather tumultuous. I tried really hard to stress to her that once it’s done it’s REALLY hard to undo and may cause a lot of problems down the road. I’m all for marrying the one you love…..if and only if you both agree to a lifelong committment. Though I think very few people actually see it that way, otherwise we wouldn’t have so much divorce on either end of the spectrum.

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    In 2005, my then-girlfriend and I went to Canada to get married. We were young, stupid, and rushed things; by 2007, we were completely separated and of course, unable to get a divorce because our state wouldn’t help us and Canada requires a year of citizenship to get divorced (although you can get married during a quick weekend road trip…go figure). It’s been five years now and I non-legally married my partner two years ago. Unlike my first marriage, this is the real deal, a committed, mutually respecting, loving, adult relationship. Besides power of attorney and living wills, we are unable to do anything to safeguard and cement our relationship. We moved across the country to Oregon in hopes of clearing this up. I am now in the middle of a very expensive process of filing for divorce here; my lawyer is presenting the case that since Oregon recognizes domestic partnerships and since I am unable to get divorced elsewhere, the court just needs to go ahead and dissolve it, the way they would a domestic partnership. Fingers crossed on that….we should know soon. Marriage is something to take seriously and I sincerely regret the bad choices I made when I was young and immature and in love. That weekend getaway and simple marriage license have caused an expensive headache. Although my ex and I have not lived together for 5 years, have no kids, no assets, no shared anything, and are asking for only a signature on a document, they could decide to just not do it because of their own personal feelings about it. That’s kinda surreal to me.

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        I remember that. There was issue at first about whether or not they were even valid, wasn’t there? And then he backtracked and said that wasn’t what he meant (or something)? Hopefully they’ll change things soon because that is all kinds of messed up…. :/ For now, I’m taking advantage of living somewhere that can help me, regardless of the cost. I just want to have the whole thing behind me. :)

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      This!

      I’m like yay for same-sex marriage but seeing all the drama I’m like “ohh we need same-sex divorce!!! yikes!”

      You know people are having divorce parties now? I’m like okay I’m not buying you shit just a pat on the back for being so strong!*

      *My straight cousin has had 3 marriages, 2 divorces and a string of engagements so yeah.

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        Indeed. I am actually fortunate because in many ways I have kind of lived vicariously through others mistakes and learned through keen observation. I’m also of the belief that I don’t need government to recognize what is personal to me. What government does need to recognize is my basic human rights, regardless if I am single, married, Black, transgendered, disabled, have kids, decide not to have kids, etc. What annoys and angers me is the exclusivity of it all by way of “status.”

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    Guhhhh this sounds like a nightmare. I don’t know how Canada is with regards to same-sex divorces (though I suspect that since it’s federal, it’s the same as hetero divorce), but it’s a crippling fear to be in the position of losing my children if I’m not the biological mother =\

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      I’m certain that the laws for same-sex and hetero Canadian residents are the same, so however that would work for hetero couples using alternative methods to get pregnant (where only one person is the bio parent) would be the same for same-sex couples – and I’m pretty sure that means that both have equal custody rights, etc. (barring any extenuating circumstances).

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      That’s another thing that bothers me, the assumption that biology equates to “good parenting,” which is the same reasoning behind “same sex {lesbian} couples need male role models for their children,” etc. Oh god, someone kick me off the soap box before I go on a tirade.

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    Gay marriage is so passé. Gay divorce, that’s where it is at these days ;)

    Well, at least for me. Oddly enough I got married in Vermont and had to deal with all kinds of nonsense about obtaining civil records.

    Gay divorce in Quebec, like any divorce, is as simple or as complicated as your situation and how intertwined your lives are. You have to be living apart a year but you can try to rush it if you have grounds, claim mental cruelty, etc. just be prepared to pay lots and lots and lots in legal fees, even if you have no shared children, property or assets.

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    Hi Rachel, I agree with the pre-nup recommendation. I know it gets a bad rep sometimes; often one spouse feels like it’s second-guessing the marriage and being put in place to plan for failure, but as the legal system in some states views same-sex marriage as nothing more than a legally-binding financial contract, it’s very wise to write a pre-nup TOGETHER to ensure both spouses are properly protected in the unfortunate event of a split.

    I’m really hoping that these annoying disparities will have completely disappeared in the next 10 years in those nations who embrace same-sex marriage as an equal right. There’s plenty of professional advice on separation that applies to both hetero- and homo-sexual partnerships, and it’s important that the law steps up pretty quickish to overwrite out-dated legislation.

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