Same-sex divorce – it doesn’t have to be hostile

by Rob Howard
Associate Editor

For most in the LGBTQ community, the Supreme Court’s Obergefelldecision, making same-sex marriage legal across the country, was a happy victory. But for Nebraska resident Robyn Reynolds it was a release; she was finally able to divorce her wife. Before Obergefell, she was in legal limbo.

Reynolds told The Gayly, “It was an interesting situation to be in. Having to split up from someone, and having no idea when it was going to be legal to divorce this person. In my head, I was tethered to that person indefinitely.” The whole legal situation, said Reynolds, “led to an extremely stressful and expensive divorce.”

Oklahoma resident Cammy Eschler had a completely different experience. Married in 2013, by December 2015, says Eschler, “We both wanted out, so neither of us was dragging our feet. This is over, let’s go ahead and make it official. We separated in December and were legally divorced by February.”

The difference was the June, 2015, Obergefelldecision. Reynolds and her wife had married in 2012, and filed for divorce in 2014. Nebraska didn’t have same-sex marriage until the decision, and as a result refused to grant a divorce.

For Eschler, her divorce was “really easy. I was in Oklahoma and she was in another state. She sent me the paperwork in the mail; I signed it, and sent it back. A couple of months later I got a notice that we were legally divorced.”

Because of the legal situation in Nebraska, Reynolds’ divorce was tied up in the court as the state tried to figure out whether it could grant a divorce. Eschler’s was what is called an “uncontested divorce”.

Oklahoma City family law attorney Rhonda Telford Nadeau explained, saying, “For an uncontested divorce, they are willing to come in and put together an agreed order.” She can only represent one of the parties, she noted. But if the couple can agree on details, she can present the order to the unrepresented person. She does suggest that the partner from the opposing side have an attorney review the agreement.

Nadeau talked with The Gayly about same-sex divorce. “Everything I’ve encountered treats it as if they were a man and a woman. Nothing’s been in conflict.” Conflict arises, she said, “When we are dealing with children.”

She has had plenty of experience with that, and her efforts are good news for both married and unmarried LGBTQ couples who decide to end their marriage or partnership. Nadeau was the attorney in Ramey v. Sutton, a landmark case decided by the Oklahoma Supreme Court in 2015.

The same-sex couple had been together almost 10 years, but had not married because it was not legal at the time in Oklahoma. Early in the relationship, the couple decided to have a child. Kimberly Sutton was the biological parent, and she and Charlene Ramey co-parented the child until their relationship ended in 2012.

Throughout the time they were a couple, Ramey and Sutton lived together and held themselves out as a family to friends and relatives. The court held the non-biological parent had standing and that a biological parent does not have the right to legally erase an almost ten-year parental relationship that she voluntarily created and fostered with her same-sex partner.

Nadeau says it’s all about the kids. “I know situations change, and people change, but the child doesn’t have to be the loser in the divorce. No one is the winner when the child is being hurt.”

Another issue that causes conflict in divorce is how to divide the assets the couple has. States vary, but the law often looks at when the couple became a couple. For same-sex couples, that can be problematic. As an example, they may have started living together in 2005, had a commitment ceremony in 2008, been legally married in 2015 after Obergefell, and decided to divorce in 2017. Many states consider the date of marriage to be the legal milestone that establishes the division of property.

Same-sex couples may have to wait a while for clarity. When Huffington Post wrote a story on same-sex divorce, they interviewed California divorce attorney Michael Bialys, who has an LGBTQ family law practice. “In the ‘50s,” he wrote, “people weren’t getting divorced, and in the ‘60s when it was happening more, the law caught up — but it realistically took about 20 years for the law to catch up,” Bialys said. “Same-sex couples, he notes, may be in for a similarly long wait.

“It’s going to be a while, and there are going to be inconsistencies in the decisions,” because state law governs divorce.

The best advice? Nadeau says, “It doesn’t have to be hostile.” If a couple can be civil and work out details like child custody and support and the division of assets, lawyers like Nadeau stand ready to help with the legal process.

Copyright 2017 The Gayly – February 13, 2017 @ 11:30 a.m.