Same-Sex Divorce Presents Challenges
Imagine you are a family court judge confronted with the following case. Two professional women, married for three years, are asking for a divorce. One member of the former couple expected that she would split the property and share custody of their 4-year-old child. Her ex wanted sole custody and the ability to move out of the state. Both claims for custody were based on the same premise—the child should be with its mother.
As marriage and civil unions between same-sex couples become more common, the fact of same-sex divorce also confronts the legal system. The traditional bias of family courts to give custody preference to the mother becomes more complicated in the breakup of a lesbian couple. It is
also complex when dealing with the divorce of a gay male couple.
Same-sex divorce is an emerging area of domestic law. Because the rights of gay and lesbian couples vary in the United States from state to state and between states and the federal government, divorce presents a more complex set of issues for same-sex couples. Under the 1996 Defense of Marriage Act, states are not required to recognize a same-sex marriage that occurred in another state. For example, when heterosexual couples divorce, alimony payments are tax-deductible expenses. But because the Internal Revenue Service does not recognize the legality of same-sex marriages, such is not the case for gays or lesbians who make such payments to former partners.
Similarly, retirement plans that are more easily divided when heterosexual couples divorce must be cashed out, with significant tax penalties, when the divorce involves a same-sex couple. And if a state does not recognize same-sex marriage, it is likely that it will not grant a divorce; the couple might have to move back to the state in which they were married in order to divorce.
Clearly, the controversy surrounding same-sex marriage will continue to create issues related to same-sex divorce.
In the meantime, same-sex couples whose relationships did not work out will continue to be confronted with a host of challenges on top of the stress and trauma associated with divorce in heterosexual couples.
situation when one’s spouse dies, divorce often means that the person’s ex-spouse is present to provide a reminder of the failure. As a result, divorced people are typically unhappy in general, at least for a while. Indeed, divorced people of all ages are less likely than married, never-married, and widowed people to say that they are “very happy” with their lives (Kurdek, 1991b; Lee, Seccombe, & Shehan, 1991). The effects of a divorce can even be traced to generations not yet born due to long-term negative consequences on education and parent-child relations in future generations (Amato & Cheadle, 2005).
Divorced people sometimes find the transition very difficult; researchers refer to these problems as “divorce hangover” (Walther, 1991).
Divorce hangover reflects divorced partners’ inability to let go, develop new friendships, or reorient themselves as single parents. Indeed, ex-spouses who are preoccupied with thoughts of their former partners, and who have high feelings of hostility toward them, have significantly poorer emotional well-being than ex-spouses who are not preoccupied or who have feelings of friendship toward their former partners (Masheter, 1997). Forgiving the ex-spouse is also important for eventual adjustment postdivorce (Rye et al., 2004). Both low preoccupation and forgiveness may be indicators that exspouses are able to move on with their lives.
Divorce in middle age or late life has some special characteristics. If women initiate the divorce,
they report self-focused growth and optimism; if they did not initiate the divorce, they tend to ruminate and feel vulnerable (Sakraida, 2005). However, in both cases they report changes in their social networks. Middle-aged and elderly women are at a significant disadvantage for remarriage—an especially traumatic situation for women who obtained much of their identity from their roles as wife and mother. Support groups help people adjust; for men this works best in large groups and for women it works best when the group provides emotional support (Oygard & Hardeng, 2001).
We must not overlook the financial problems faced by middle-aged divorced women (Gallagher, 1996; Kurz, 1995). These problems are especially keen for the middle-aged divorcee who may have spent years as a homemaker and has few marketable job skills. For her, divorce presents an especially difficult financial hardship, which is intensified if she has children in college and the father provides little support (Lamanna & Riedmann, 2003).
Remarriage. The trauma of divorce does not deter people from beginning new relationships, which often lead to another marriage. Typically, men and women both wait about 3.5 years before they remarry (U. S. Census Bureau, 2008a). However, remarriage rates vary somewhat across ethnic groups. African Americans remarry a bit more slowly than other ethnic groups (U. S. Census Bureau, 2008a).
Research indicates that there are few differences between first marriages and remarriages (Coleman & Ganong, 1990). Except for African Americans, second marriages have about a 25% higher risk of dissolution than first marriages, and the divorce rate for remarriages involving stepchildren is about three times higher than the rate for first marriages (Lamanna & Riedmann, 2003; U. S. Census Bureau, 2008a).
Although women are more likely to i nitiate a divorce, they are less likely to remarry (Buckle, Gallup, & Rodd, 1996) unless they are poor (Schmiege, Richards, & Zvonkovic, 2001). However, women in general tend to benefit more from remarriage than do men, particularly if they have
428 CHAPTER 11 children (Ozawa & Yoon, 2002). Although many people believe that divorced individuals should wait before remarrying to avoid the so-called “rebound effect" there is no evidence that those who remarry sooner have less success in remarriage than those who wait longer (Wolfinger, 2007).
Remarriage options for older adults after either divorce or the death of a spouse are often more constrained. In some cases, widows may lose financial benefits from pensions or other retirement plans if they remarry. This problem exists for widows across cultures; for example, in Namibia widows are constrained in their options and typically must depend on others (Thomas, 2008). Adult children may voice strong opposition to their parent remarrying, which can put sufficient pressure on the parent that they remain single. Some older adults might also believe it is inappropriate for them to remarry after a long marriage because it may be perceived as disrespectful. Still, some older adults remarry, and work through these and other issues, such as who will inherit the estate.
Adapting to new relationships in remarriage is stressful. For example, partners may have unresolved issues from the previous marriage that may interfere with satisfaction with the new marriage (Faber, 2004). The effects of remarriage on children is positive, at least for young adult children who report a positive effect on their own intimate relationships as an effect of their parent(s) remarrying happily (Yu & Adler-Baeder, 2007).