Why Mediation & Collaborative Divorce Processes Are Better for the LGBTQ Community

Tuesday, December 1, 2020

By: Concetta G. Spirio, Esq.

Those in the LGBTQ community have 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. For example, 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 only recognizes 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.  What does this mean? All assets, including real estate and retirement assets, that were owned before the date of legal marriage would not be considered as marital property but Separate property.  Therefore a spouse would Not be entitled to a share of theses assets. Obviously, this could have a disastrous effect  on a couple that had planned their financial future together with their joint retirement in mind.  

For the LGBTQ community, the court  system is last to place they should entrust their relationships, family and assets.  However, There is another option.  Mediation and/or collaborative divorce provides resolution of conflicts outside the court system. Most attorneys and the public are familiar with mediation, but 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 way to end a marriage. While a mediated divorce involves a neutral third party helping two sides come to a resolution, in the collaborative process, parties work with a team –  including attorneys, financial professionals and mental health professionals – trained in collaboration. The process is focused on the needs, wants, and concerns of the clients and helps both parties reach a mutually agreeable resolution, helping the couple and family move forward in a more positive way.

Now more than ever this process is crucial to couples facing conflict.  The courts during the COVID-19 pandemic were closed to all new cases, only handling matters that qualify as an emergency.   The Courts then open up and have now permitted Electronic filing for Divorce matters.  However due to recent rises in cases the court systems are shutting down again.  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 the mediation and collaborative approaches, 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.

Concetta is A Compassionate Collaborative Divorce Attorney, Mediator and Peacemaker with more than 30 years of experience dedicated to helping people resolve conflict holistically outside of the Court system. She can be reached  at Email: cspirio@spiriolaw.com Tel: (631)  277-8844 www.spiriolaw.com

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