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Is mediation a good idea in a same-sex divorce?

If you and your same-sex spouse decide to seek a Texas divorce, you may well find that obtaining a mediated divorce serves your interests better than obtaining a traditional litigated divorce. This is because while Texas recognizes same-sex marriages, our divorce laws generally were passed with heterosexual couples in mind, not same-sex couples. Consequently, you may find mediation the perfect workaround to your having to precisely fit within all the various aspects of Texas divorce law.

As shown by GoogleScholar, the 2015 U.S. Supreme Court case of Obergefell v. Hodges changed America forever when it established the right of same-sex couples to marry. Unfortunately, however, the Justices did not issue a mandate in this case that the states update their divorce laws to accommodate same-sex couples who ultimately divorce. Therefore, the states have undergone a slow updating process the past three years that remains uneven on a state-to-state basis. For most divorcing same-sex couples, obtaining a mediated divorce solves any possible issues they may face.

How mediation works

In case you are unfamiliar with mediation, it starts by you and your spouse agreeing to hire a neutral mediator who legally represents neither of you, but rather serves as your guide and facilitator as the three of you hold a series of joint meetings during which you and your spouse negotiate resolutions to your issues and conflicts.

While each of you has the right to hire your own private attorney to attend these meetings with you, most couples do not. Instead, they find that the cooperative and nonthreatening atmosphere of mediation allows them to resolve their own differences without undue stress or strain.

What you and your spouse agree on

Just like divorcing heterosexual couples, you and your same-sex spouse likely will have to resolve the following issues:

  • How you want to handle your post-divorce child custody and visitation
  • How you want to handle your post-divorce child support payments
  • How you want to handle your post-divorce spousal support payments
  • How you want to divide your marital property

Keep in mind that mediation is a nonjudicial procedure. What this means is that while any agreements you and your spouse come to during the mediation process must be approved by a judge in order for you to obtain a divorce, the judge likely will readily approve them as long as they are not unconscionable with regard to either of you and are in the best interests of your children. In all likelihood, you and your spouse can obtain your divorce without ever having to step foot inside a courtroom.

This is general educational information and does not provide legal advice.