Lawyers: Be Aware of These Legal Needs of the LGBTQ Community

If you think that the nationwide recognition of same-sex marriage means that there are no more legal issues to think about with respect to the still-marginalized LGBTQ (Lesbian, gay, bisexual, transgender, and queer or questioning) community, please know that you are woefully mistaken. While essential to LGBTQ liberation, marriage is not a panacea that brings full-lived equality to the entire community. There are many unresolved issues, especially for individuals who are lower income, transgender, people of color, living in rural communities, and much more. We can’t cover it all but, over the course of a few columns, we’ll endeavor to share some areas to consider. Whether you have seen LGBTQ folks in your office yet, or just want to be prepared for that eventuality, these are matters of concern to many.

Divorce and Date of Marriage

Should your practice include any matrimonial law, you are aware that assets and liabilities are typically divided, and spousal support awarded, based on the duration of marriage. However, for some same-gender couples who have been together for many years before the law entitled them to wed, that outcome might not be the fairest means of resolutions. Of course, marriage cannot be imputed. But using a homophobic legal system to advantage our client is not desirable either. For example, let’s say your Floridian client was married in New York in 2012 because it wasn’t yet legal for LGBTQ people to marry in Florida until 2015. Now that the marriage is dissolving, she wants to make the argument that her “date of marriage” should be deemed 2015 despite always living in Florida because the resulting asset split would be more favorable. That is not fair. She knew she was getting into a legal marriage when she flew up to New York to get hitched. She could have done a prenuptial agreement to modify the default of the law with regard to what happens at divorce or death, and chose not to. Florida was the 36^th state in the United States to lift the ban against marriage equality—your client should not be able to benefit from that delay. If you find yourself in a position to convey to a client that she can truly honor the equality wished and worked for, do it. While we have the duty of zealous advocacy, try to resist the temptation to make immoral arguments that set the LGBTQ community back.