Why mediation may be best in same-sex divorces

Posted by Lauren S. CohenNov 06, 20180 Comments

Should you and your New York same-sex spouse decide to call it quits, you may discover that getting a divorce by means of litigation is not in your best interests. Why? Because while New York like all other states recognizes same-sex marriages, the divorce laws may favor heterosexual couples.

This unfortunate situation arises because of the landmark 2015 U.S. Supreme Court decision in Obergefell v. Hodges. This was the case that legalized same-sex marriage throughout the United States. The justices did not, however, mandate the states to accordingly update their divorce laws. As a result, laws have been slow to change and a mediated divorce may work better for you and your spouse than a traditional litigated one.

Mediation process

The first thing you and your spouse do is hire a mutually agreed upon neutral mediator who represents neither of you. This person will act as your facilitator and guide throughout the mediation process. The three of you will hold a series of joint meetings during which you and your spouse will negotiate and compromise with each other in order to resolve your divorce issues. Your mediator will allow each of you plenty of time to air your grievances, concerns and wishes, but (s)he will also ensure that both of you do so in a cooperative manner. Neither or you will be able to bad mouth, overwhelm or otherwise intimidate the other.

How many meetings you attend depends on the number and complexity of your issues. Most couples, at minimum, need to resolve the following issues:

  • Post-divorce child custody and visitation
  • Post-divorce child support
  • Post-divorce spousal maintenance, if any
  • Fair and equitable division of your marital property

Mediation advantages

One of the biggest advantages of mediated same-sex divorces is that you and your spouse get to maintain control over your lives by making your own decisions. Another is that mediation is a nonjudicial process. Consequently, as long as the agreements you reach are fair to both of you and in the best interests of your children, a family court judge can sign off on them and grant your divorce without having to worry about statutory law or case law precedent.