State of Law: Why Divorce Lawyers Are Paying Attention to the Legalization of Same-Sex Marriage

In this series, professionals debate the state – and future – of their industry. Read all the posts here and write your own (use #MyIndustry in the body of your post).

It is awkward and perhaps even just wrong to consider “Family Law” an industry.  It is counter to everything I feel about my job. But there are various roles and professionals involved, including lawyers, judges, accountants, psychologists and others and it is a specific undertaking. If one can call it an industry, so be it. But the vast majority of professionals I know in this field, do not want their "industry" to expand. They want closure for their clients and peace for the sake of the children.  It is easy for people to blame lawyers, judges and the system, but in the end, we are all people. Some people try to do good, others don’t. But I submit that those who get called upon again and again to help, try to do good.

So what are the "evolutions" we are seeing and the related key problems? It may be that many professionals — lawyers and others, whose previous area of practice has subsided (real estate for instance) — have turned to family law. And there is a learning curve. To be experienced in this field takes, obviously, experience and time. The field of professionals is expanding and along with that come good professionals and bad. Hopefully bar organizations and others can help enhance the quality of the lawyers' representation efforts. And these professionals, and people who feel wronged in their particular cases will continue to try to improve the laws in our system. 

But no matter what improvements are made to the “system,” no matter what new laws and rules are promulgated, family law often comes down to the judge’s opinion. Yes, a human being, saddled with the burden of resolving a dispute between two people who chose to go through life together, chose to have children together and chose to own homes, cars and businesses together, who now cannot choose jointly how to share those things. So the “industry” is dependent on judges, and if you ask litigants across the country, their perspective will be based on their experience. And experiences across the country, and even in the same courthouse, can vary widely.  

So what are the trends? Mediation, out of court resolution, private judging.  Anything to keep the parties in charge of their own destiny and not leave it to a judge. In fact, recently ICLE (Institute of Continuing Legal Education) of GA asked me to write a book about this. I did and you can find it at https://www.mydivorcebooks.com. 

But if there is one major change in the “industry,” and there are many, it would have to be same-sex marriage. The sea change of public opinion and court rulings in the last few years has been astonishing. The United States Supreme Court will soon rule (maybe even before this article is released) on whether states must grant marriage licenses to same-sex couples and whether states must recognize same-sex marriage from other states. And it is a close call. Just 19 years ago, President Clinton signed the Defense of Marriage Act which said that states did not have to do either of these. Times have changed. And we are all getting ready (and many of us already practice family law in states where same-sex marriage is authorized). 

So how are we getting ready, as an industry? The topic of same-sex marriage is now raised and discussed at most family law-related continuing legal education seminars for lawyers.  While same-sex marriage will certainly result in same-sex divorce (and already has in many states), there is still a lot to do, even if it is simply "becoming accustomed to it." Verbiage must change ("Husband vs. Wife" may now be "Wife vs. Wife"). Perceptions and protocol must also change (for instance, bailiffs in court may be used to asking lawyers or witnesses if they are at court for the husband or wife, etc.). Of course the legal system's answer will be to refer to them by "plaintiff" or "defendant," but hopefully we can continue to move toward less adversarial nomenclature, such as "movant" or "petitioner" and "respondent." And as for those judges who may have subtle (or not so subtle) biases against homosexual individuals, they will have a dilemma, no? But ultimately, if and when same-sex marriage is legalized throughout the country, there will really be no question of what to do about, or how to handle "same-sex divorce", because there will not be "same-sex divorce", there will simply be "divorce."

What is perhaps more interesting intellectually is that at the same time as this current onset of same sex marriage, there are gigantic developments in the field of artificial reproductive technology. And the struggle for the law to keep pace is fascinating. Artificial reproductive technology is used by heterosexual and homosexual couples or individuals, but for obvious biological reasons it is often part and parcel of a homosexual relationship when the couple wants children. So what happens when an embryo is created, but not brought to life, and the couple separates (think of the Sofia Vergara case)? Or, who has more rights if, for instance, two women have a child, but one's egg was used and the other was the birth mother? This issue has been litigated, but there are very few, if any laws on the books to give our judges guidance. The issues are fascinating and we are just seeing the tip of the iceberg. 

These are interesting times. @GADivorce