Over the past year, my partner Brian James and I have had a number of cases for divorce mediation for LGBTQ and same-sex couples for the dissolution of their marriage or Civil Union. While many of the issues to be mediated are the same as with heterosexual couples, we have found subtle and unique differences that require the use of mediators who have experience working with LGBTQ and same-sex couples, and the skill set to ensure a successful mediation.
The following is a snapshot of some of those difference we have seen in divorce mediation for LTBTQ and same-sex couples:
First, some same-sex couples want to have the “start date” of their relationship be a different date than that of their marriage or Civil Union. Since Civil Unions in Illinois have only been an option since 2011, and same-sex marriage has only been legal in Illinois since 2014, we have had couples negotiate when to “begin” the accumulation of assets and debts, which directly affects how they choose to divide their retirement accounts or allocate other financial responsibilities.
Civil Unions have been legal since 2011, which means couples made their relationship “legal” the day of the Civil Union, though they may have been together for years prior to the option of a Civil Union and all the legal benefits of this relationship status. If you think about it, you could make the same argument for heterosexual couples, though it is seldom seen.
We mediated a same-sex couple who had been together for 23 years, though only in a Civil Union since 2011. They had three children together, to which one of the two gave birth, and legalized their relationship when they were able to do so in the State of Illinois. Unlike most of our couples who do not dispute the start date of their marriage as the date to begin calculating maintenance or division of “marital” assets, this couple wanted to give validity to the real beginning of their relationship. One of them gave up a residence and a job, moving across the country to begin a life with her new partner. We spent a lot of time discussing the beginning date for their relationship, to which they ended up agreeing. What’s notable is, if they had litigated this, it would have cost them thousands of dollars and burned many bridges between the two of them.
Second, several of the same-sex couples we have mediated were legally married for fewer than five years and were straightforward in their goals for divorce. They each kept their respective retirement accounts, and their salaries were close enough that there was no Maintenance to negotiate or mediate. They were also able to sell the marital residence and split proceeds 50/50. These couples were all very young and none of them had any children, making it easier to divide assets, keep any credit card debt separate and go their separate ways without spending a significant amount of money getting divorced.
Third, another same-sex couple was married almost 20 years and had three sessions with us. They had no children, were quite emotional in the zoom meetings we had with them, and did not seem on the same page in terms of whether or not to divorce. Both Brian and I had a feeling one of them wanted the divorce and the other did not. The couple was stuck as to what to do.
After a few months during which we did not hear from them, (we do not pursue our couples if they are not contacting us), they emailed us that they had decided to stay together. No explanation was offered as to why. We have no idea what happened or why they made the decision, except that they did not seem like they were on the same page from the beginning.
As a matter of fact, for most of our couples, we never know why they are getting divorced, as it is not relevant in the mediation process. It can be detrimental to the mediation process for our couples to discuss the specifics as to why they are getting divorced or dissolving their Civil Union, as it may lead to an unnecessary argument.
Since mediation is forward-focused, we do not ask questions about the past. Mediation is different from therapy in that important way. It does not matter what brought them to the point of divorce, just that they are ready to mediate. During mediation sessions, we often find that couples communicate with each other better than ever, which is one of many benefits of mediation.
While I often try to find themes in the same-sex couples we have mediated, I have learned that the reasons they are ending their relationship are the same as heterosexual couples. Though Brian and I do not always know the reason they are getting divorced, which is also true of heterosexual couples, we do not let that affect our neutrality in the mediation process. Since some of the same-sex couples are parentage cases, meaning the couple has children together but has not entered into a Civil Union or gotten married, it is safe to say that mediation skills remain constant regardless of marriage, Civil Union, same-sex or heterosexual relationship.
Some of the key differences listed above are the reasons to make sure your mediators have the knowledge, skill set, and experience necessary to ensure the needs of both parties are met, and that the mediation process is done thoughtfully and with dignity.
We expect to see an influx of cases of divorce mediation for LGBTQ and same-sex couples in the coming months and years, largely due to the upswing in divorce, in general, due to COVID and the fact that it has now been several years since same-sex marriage became legal.
In closing, whether you are an LGBTQ or same-sex couple, or a heterosexual couple, Brian and I would be happy to consult with you to determine your options and do our best to ensure the best outcome in your divorce. The key to success in the mediation process is keeping an open mind and being willing to consider all options the mediator suggests when trying to come to agreements. In other words, pick your battles—prioritize what is really important to you, and what will make you and your children happiest in your post divorce life. We are here if you need us.
Ellen Feldman has been working as a mediator since 2007. A graduate of Smith College and Indiana University School of Law, Feldman previously worked as an attorney for 15 years practicing commercial litigation. Since 2006, Ellen has been a volunteer for The Lilac Tree, an Evanston based nonprofit organization assisting women through the process of divorce. Additionally, Feldman completed Family and Divorce Mediation Training through DePaul University Center for Conflict Resolution and Advanced Family Mediation. She is a court-approved mediator for the 19th Judicial Circuit Family Court of Lake County. Learn more by visiting the C.E.L. & Associates website.
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