In 2015, The Supreme Court, in Obergefell v Hodges, ruled the right to marry was a fundamental right also guaranteed to same sex couples. States now had to recognize marriage licenses of same sex couples and registered marriages had to be retroactively recognized throughout the United States. 

However, what is the date of marriage for couples who had non-ceremonial (common law) marriages or who had commitment ceremonies prior to the date they got a marriage license? There are also those couples who would have married, but didn’t, had marriage been legal. The marriage certificate can post-date the date of their true commitment, including their financial commitment, to each other. That raises a large number of financial issues when those couples decide to divorce because the date and length of marriage affects alimony/spousal support and division of property.  

States differ in their requirements for legislative backdating. States also differ in their definition of common law marriage or don’t recognize common law marriage, including North Carolina where I live and work.  

Even though the Supreme Court ruling was a significant legal step for LGBTQ couples, the date of marriage may still not be legally clear and thousands and thousands in legal fees could be spent only to find there is no definitive legal answer. In these cases, a judge would have to impose the final decision, which can lead to long time bitter feelings. In many states, any commitment other than a legal one, is simply not recognized. 

In mediation, the couple has flexibility. For instance, the couple could agree to apply different starting (marriage) dates with regard to different issues. As an example, perhaps the couple had a commitment ceremony and then bought a house together in one state. Later that couple decided to move to another, more friendly LGBTQ state, where marriage and the ability to adopt was available and then one spouse became a stay-at-home (and financially dependent) parent. In mediation, this couple could use the commitment date for division of property and the marriage date for length of marriage as it pertains to spousal support, if they agreed that seemed fair and equitable.   

Considering these hurdles, mediation is a better environment for settling the many financial issues of LGBTQ divorce. Being a non-legal environment, during mediation, the couple could discuss their perspectives on when they believe the marriage started, their financial and non-financial contributions to the marriage and how and when their property was comingled. All of this creates a longer discussion during divorce negotiations, and that time can lead to huge legal fees if a couple “lawyers-up” and does not mediate. Mediation is not only less expensive, but also kinder and fairer.