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LGBTQ clients are just like any other clients who walk into a divorce attorney’s office—and LGBTQ clients may also have very different experiences and needs. Those two statements might seem like polar opposites, but they are both true. Any person who is going through a divorce will have certain experiences: grief, anger, anxiety about the future, financial worries, concerns about their children. None of that depends on one’s sexual orientation or gender identity. But it’s naive at best, and disrespectful at worst, to say that those things don’t have an impact on the divorce process and experience. Here are some things that lawyers should know about LGBTQ clients and divorce.
These days, we all hear grumbling about the need to be “politically correct.” The truth is, we don’t need to act respectful of our clients; we need to BE respectful. When we are coming from a place of genuine respect for the person sitting across the desk from us, we will usually manage to say the right thing. And if we don’t, hopefully our apology will be genuine and the client will feel respected and safe enough with us to help us get it right the next time.
Imagine how frustrated you would feel if you were introduced to someone and they kept calling you by the wrong name, even after you had reminded them several times of your actual name. You would quickly conclude that you were not very important to them, and perhaps that they were deliberately trying to mock or upset you. If you are an attorney, you may struggle to imagine yourself doing such a thing to someone else.
Unfortunately, transgender clients often experience a variation on this. I met a client whose own attorney kept using the wrong gender pronouns to refer to them, even calling them an “it” at one point in the courtroom. As if this wasn’t bad enough, neither the judge nor anyone else spoke up on the client’s behalf. It is difficult to imagine a more profound expression of disrespect, especially from someone who is supposed to be on your side.
As attorneys, our job is not only to help our clients achieve a good outcome in their case, but to help make a difficult process easier. While, of course, we should show all clients respect, we should be especially mindful of the types of disrespect LGBTQ clients may have experienced. With transgender clients especially, ask about and use their chosen pronouns and name.
If you struggle with fundamental issues like these, your clients will surely pick up on that, and conclude rightly that they should have chosen a different attorney.
Beyond the fundamental matter of treating clients with respect and dignity, attorneys should be attuned to some of the unique challenges faced by LGBTQ clients in divorce. As noted above, some aspects of divorce are common to everyone, some not.
Your LGBTQ client may be splitting from an opposite-sex partner or a spouse of the same sex. Depending on the circumstances, you may have to help your client work through different challenges.
A client may have married someone of the opposite sex because they were not fully in touch with their sexuality, or were trying to deny it. Unsurprisingly, these marriages often become unsustainable and come to an end. When that happens, the other spouse may try to weaponize the LGBTQ spouse’s sexual orientation or gender identity. I know of a situation in which a woman wanted to out her ex, a trans woman, because she didn’t want anyone thinking she herself was a lesbian who had been married to a woman.
More commonly, a cisgender, heterosexual (cishet) spouse may try to use the other spouse’s sexuality as evidence of lack of moral fitness in a custody case, or to damage the children’s relationship with the other parent.
Divorces of same-sex partners bring their own issues. Often, because same-sex marriage is a relatively new development, a couple who has been together for decades might be divorcing after a short marriage. Their financial lives may have been entwined for much longer than their marriage certificate indicates, leading to inequities when it comes time to divide property (especially retirement accounts) or calculate spousal maintenance.
And, of course, when both members of a couple are not the legal parents of the couple’s children, there can be complications regarding custody and parenting time. It is important to gauge a client’s expectations, educate them as to what the law provides, and advocate for what is just.
If you identify as LGBTQ and are facing divorce, it is important to work with an attorney who respects you, understands your needs, and will fight for you. We invite you to contact our law office to schedule a consultation.