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Mastanduno Law Group Nov. 8, 2021

Mediation May Be Especially Useful in A Same-Sex Divorce

Every marriage is unique and, as a result, so too is every divorce. Common issues such as child custody, spousal support and property division crop up in nearly every divorce, but how they are specifically dealt with changes from one divorce to the next. In the context of same-sex divorce, there is yet another level of uniqueness, due to the manner in which same-sex marriage has been historically treated.

Divorce Law Has Not yet Caught up With Same-Sex Marriage

Heterosexual marriage has been around for a significant period of time. Because of this, how their divorces proceed follows a fairly predictable pattern. Take property division, for example. The court will classify the couple’s assets as either marital or separate property. The separate property will usually remain with the spouse who owned it, while the marital property will be equitably distributed between the two spouses.

While these same laws and procedures apply equally to same-sex couple, the process is complicated by the fact that same-sex marriage was only legalized recently. So, in the case of equitable distribution of property, the court will consider many factors, including the length of the marriage. But a same-sex couple may have been together for 20 years or more before being legally permitted to marry. How, then, will the court divide the assets? What time period will it use to make its decisions? This is where the law becomes somewhat unsettled, introducing uncertainty into a same-sex divorce unlike that of its heterosexual counterpart.

In light of the uncertainty, same-sex couples may benefit more from a mediated divorce than heterosexual couples. Assuming they are on good terms and able to work with each other, with the assistance of a mediator, they can tackle these gray areas in Oregon divorce law. By finding solutions for themselves, they don’t have to rely on the court crafting a divorce decree which does not accurately reflect the length, nature and commitment of their entire relationship.


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