Tips for LGBT Divorce Work (California)

By Ann Buscho, Ph.D and Charlie Spiegel, Esq. for Collaborative Practice California.

  1. Some wonder if now 1 year after the US Supreme Court extended marriage equality nationwide, if our practices with same gender couples divorcing are now all the same as with mixed gender (straight) couples? Here are some tips of some of the things that remain specific to all our work with LGBT people in our practices.[Moved Up.] How comfortable are you asking questions such as “What gender do you identify with?” and “What pronoun would you prefer me to use?” See #5 below. Know your own capabilities and skills, experience and biases, and ask yourself if your biases might get in the way. If so, refer!
  2. Focus on the parentage of any children. You need to ask – the US Supreme Court decision gave equality to marriage in all U.S. States but did NOT give equality to parentage. Do all the people the child psychologically considers as parents have the legal status of parents? The birth certificate is useful but not determinative of this question. If needed, you can look at step-parent or second-parent adoption for both gay and straight couples. You should inquire into any pre-birth orders or adoption papers. If there is no adoption, a parent can be made legal as part of the divorce proceeding, to establish legal parentage before talking about custody. This way both people can have the “child conversation” from the status of both being parents. By statute in California a child can have more than two parents under certain circumstances, not limited to LGBT parents.
  3. What is the legal status of the relationship between the adults when they walk into your office? They may have been, or not been married, registered domestic partners (“RDP”), or under civil union (“CU”). This may be similar to unmarried couples in the straight world who want to separate as if they were married or have nonmarital “palimony” claims. Not all those RDP/CU options nor are recognized for straight couples in California, and no common law marriage exists in California for gay or straight couples. Determine their legal relationship status, or even whether they may have multiple legal statuses, from different states or even different countries. Make sure that what you are doing in CA considers and will terminate all of these statuses.
  4. What is the start date of the adults’ legally recognized relationship? Was marriage legal where they lived when their relationship started and significantly progressed? Professionals from all 3 disciplines would want to help the partners look at when the partners feel they were entering into what kinds of a committed relationship at what point. For example, at what point did they merge their finances and how merged? This question is important if they want to apply CA marital law before marriage was legalized in CA for the purpose of determining community property and/or spousal support. This is a choice every couple has.
  5. Figure out the respectful words to use. Professionals should use the words that the couple chooses and prefers to use. Most consider it respectful to ask them how would they like to be referred to? People may want to be referred as “spouse” if married or “partner,” or with a transgender person, “what pronoun would you like me to use?” For example, you may ask “Is it appropriate to refer to you as “she” and “her” in my legal documents?” Ask about “Dad” distinct from “donor” as these also may have emotional charge in a lesbian couple, mixed couple or even in a gay male couple.
  6. Look at financial transactions to see if any were done before legal recognition was available. Be aware that some transactions may have been done because of trust and estates planning before marriage was legal. Their intentions may have been different if they meant it for what was to happen at their death, but perhaps they did not intend it to cover a possible future divorce.
  7. If your clients divorced before marriage equality, then their spousal support may not have had the same tax treatment as straight people’s divorce. They might want to go back and amend their divorce for tax advantages.
  8. We’ll give future tips for: Transgender kids of straight people, and transgender adults getting divorced. Also there is a workshop on this topic by Laura Ward and Mariette Geldenhyus at IACP October 2016 conference in Lake Las Vegas. www.collaborativepractice.com

Tips for LGBT Divorce Work (California) –   for NY Assoc. of Collaborative Professionals October 13, 2016 presentation in NYC.
www.nycollaborativeprofessionals.org


Ann Buscho, Ph.D.

http://www.DrAnnBuscho.com/index.htm

http://www.collaborativepracticemarin.org/members/Buscho

(415) 456-0952

FAX: (415) 295-7382

Clinical Psychologist and Collaborative Law Coach

 

CharlesSpiegelLaw
Divorce & Custody Mediation
Collaborative Practitioner
Adoption & Surrogacy
PreNuptial Planning

Real Estate
(415) 644 4555

842 Elizabeth St Suite #1

San Francisco, CA.  94114

(Also in Flood Bldg. Market @Powell)
CharlesSpiegelLaw@gmail.com
www.charlesspiegellaw.com

Collaborative Practice California – www.cpcal.org