Massachusetts holds a special place in the history of marriage equality. In November 2003, the Massachusetts Supreme Judicial Court ruled in Goodridge v. Department of Public Health that same-sex couples had the right to marry, making Massachusetts the first state in the nation to legalize same-sex marriage. That historic decision opened doors for thousands of couples—and today, as some of those marriages come to an end, Massachusetts continues to be a place where LGBTQ+ couples can find experienced, affirming professionals to guide them through divorce.
Attorney Rueschemeyer has mediated dozens of same-sex divorces in Massachusetts, bringing the same financial acuity, knowledge of Massachusetts family law, empathy, and active mediation style to these cases that she brings to all her mediation work. This post addresses the distinctive considerations that arise in LGBTQ+ divorce and explains why mediation is often the ideal process for same-sex couples ending their marriages.
Why Mediation Works Well for Same-Sex Divorce
While the legal framework for same-sex divorce is now the same as for opposite-sex divorce, LGBTQ+ couples often face unique circumstances that traditional litigation handles poorly. Using mediation for divorce offers these couples significant advantages.
Flexibility for Unique Circumstances
As legal scholar Claudia Card observed in her analysis of same-sex marriage and divorce, the legal frameworks governing marriage were designed with heterosexual relationships in mind.¹ Same-sex couples often don’t fit neatly into these frameworks. Mediation allows couples to craft agreements that reflect their actual circumstances rather than forcing their situation into ill-fitting legal categories.
The National LGBTQ+ Bar Association notes that mediation “is far more flexible than the U.S. court system” and “because it need not rely on years of case and statutory law that relates mainly to heterosexual divorce, mediation can facilitate fairer settlements for same-sex couples.”²
Privacy Protection
Court proceedings are public record, but mediation remains confidential. This matters for LGBTQ+ individuals who may not be fully out in all areas of their lives—perhaps to extended family, employers, or in their broader community. Mediation allows couples to resolve their divorce privately.
Avoiding Potential Bias
While attitudes have shifted dramatically—Pew Research shows support for same-sex marriage has risen from 31% in 2004 to over 60% today—bias still exists. Mediation insulates couples from judges or court personnel who might consciously or unconsciously allow bias to influence proceedings. In mediation, you control the outcome.
Unique Legal Issues in Same-Sex Divorce
Although same-sex couples now have the same legal rights to divorce as opposite-sex couples, several issues arise more frequently in LGBTQ+ divorces and require careful attention.
Determining the Length of the Marriage
Many same-sex couples lived together in committed relationships for years—sometimes decades—before they could legally marry. This creates complexity around property division and spousal support, both of which are often calculated based on the length of the marriage.
Professors Nora Gustavsson and Ann MacEachron, writing in the journal Social Work, identified this as a central challenge: same-sex couples who “were denied the right to marry” may have accumulated significant shared assets during their pre-marital years together.³ A couple married in 2013 might have been together since 1993—but courts in some jurisdictions only count the legal marriage when dividing property.
Massachusetts courts have discretion in how they approach this issue. In mediation, couples can agree to factor in their entire relationship when dividing assets and determining support—something a court might not do.
Property Division Complications
Related to the marriage-length issue, property division can become complicated when couples acquired assets together before they could legally marry. As UCLA legal scholars Abbie Goldberg and Adam Romero note in their comprehensive study of LGBTQ+ divorce, couples who “were in long-term, committed relationships long before they could legally marry” face challenges because courts “may only consider the assets accumulated since the official wedding date as marital property.”⁴
For example: What if your partner bought a house with money you both contributed before you could legally marry, but only their name is on the deed because you weren’t recognized as a couple? Under strict legal rules, that might be considered separate property. In mediation, you can reach an agreement that reflects your actual contributions.
Child Custody and Parental Rights
Child custody issues can be particularly complex in same-sex divorces, especially when children were born or adopted before marriage equality or when only one parent has a legal parental relationship with the child.
Virginia Tech psychologist Katherine Allen, writing in Family Relations, described the “ambiguous loss” that can occur when lesbian couples with children separate, particularly when legal parentage isn’t clearly established for both parents.⁵ Without second-parent adoption or a parentage judgment, a non-biological parent’s rights may be uncertain—even if they’ve been a primary caregiver throughout the child’s life.
In Massachusetts, parental rights and child support obligations follow legal parentage. If you’re a non-biological parent who hasn’t legally adopted your child, this should be addressed—ideally before or during the divorce process.
Mediation allows parents to focus on what’s best for their children rather than getting caught up in legal technicalities about who is or isn’t a “legal” parent. You can create parenting plans that reflect your family’s actual structure and your children’s needs.
Civil Unions and Domestic Partnerships
Some couples who married after 2004 previously entered into civil unions or domestic partnerships—either in Massachusetts or other states. These arrangements don’t always automatically dissolve when a couple marries, and they may need to be separately terminated. An experienced mediator can help ensure all legal relationships are properly addressed.
Why Experience Matters
Same-sex divorce requires a mediator who understands both the legal complexities and the lived experiences of LGBTQ+ individuals. As sociology professor Aaron Hoy documented in the Journal of Divorce & Remarriage, divorced gay and lesbian individuals often face “invisibility” and “illegibility” in systems designed around heterosexual norms.⁶ Working with a mediator who has extensive experience with same-sex couples means working with someone who understands your situation.
Attorney Rueschemeyer has mediated dozens of same-sex divorces in Massachusetts and understands the specific issues that arise. She brings deep knowledge of Massachusetts property division law, alimony considerations, and child custody matters to every case—along with genuine respect for LGBTQ+ families.
The Mediation Process for Same-Sex Couples
The mediation process for same-sex couples follows the same general structure as any divorce mediation:
- Initial consultation to understand your situation and goals
- Information gathering about assets, debts, income, and expenses
- Facilitated negotiation on property division, support, and (if applicable) parenting arrangements
- Drafting the agreement and preparing court filings
What differs is the attention paid to issues specific to your circumstances—whether that’s accounting for pre-marital cohabitation in property division, addressing parentage concerns, or ensuring all prior legal arrangements (civil unions, domestic partnerships) are properly dissolved.
Taking the Next Step
If you’re considering divorce and want to work with a mediator who understands the unique aspects of same-sex relationships, contact Attorney Rueschemeyer for a consultation. With extensive experience mediating LGBTQ+ divorces in Massachusetts, she can help you navigate this transition with the same care, expertise, and respect that every couple deserves.
Massachusetts was first in recognizing your right to marry. You deserve a mediator who truly understands your right to a fair, dignified divorce.
Endnotes
- Card, C. (2007). Gay divorce: Thoughts on the legal regulation of marriage. Hypatia, 22(1), 24-38.
- Wright, C. D. (2019). “Wedlocked:” Using mediation for same-sex divorce. The National LGBTQ+ Bar Association. Retrieved from https://lgbtqbar.org/bar-news/wedlocked-using-mediation-for-same-sex-divorce/
- Gustavsson, N., & MacEachron, A. (2014). Gay divorce. Social Work, 59(3), 283-285.
- Goldberg, A. E., & Romero, A. P. (Eds.). (2019). LGBTQ divorce and relationship dissolution: Psychological and legal perspectives and implications for practice. Oxford University Press.
- Allen, K. R. (2007). Ambiguous loss after lesbian couples with children break up: A case for same-gender divorce. Family Relations, 56(2), 175-183.
- Hoy, A. (2018). Invisibility, illegibility, and stigma: The citizenship experiences of divorced gays and lesbians. Journal of Divorce & Remarriage, 59(2), 69-91.
Post by Professor Benjamin Bailey, Department of Communication, University of Massachusetts-Amherst
