One of the benefits of marriage that many same-sex couples are looking forward to is divorce. Not that the desire to divorce among same-sex couple is any greater, but the rules of custody that apply are clearer and fairer to all parties.

A recent article published in the Washington Post this January discusses this complications without the structural benefits of marriage and divorce.

When her three-year-old marriage broke up, the 44-year-old doctor assumed she and her ex would split their property and jointly parent their two children. Her stay-at-home spouse wanted sole custody and the right to move the children out of Massachusetts.

In pretrial motions, both parents made the same argument to a judge: The children should be with me; I’m their mother.

For years, family court judges leaned toward a maternal preference when it came to custody disputes. But what to do when both parents are women, or neither is? Judges in Massachusetts have been grappling with that question since gay and lesbian couples began filing for divorce in 2004, seven months after the state Supreme Court legalized same-sex marriage.

Nearly 10,000 gay and lesbian couples married after the ruling. Massachusetts does not keep records on the number who have divorced, but lawyers who specialize in family cases say it is in the dozens. Those who choose to end their marriages soon discover that the trauma of divorce is compounded by legal and financial difficulties that heterosexual couples generally are spared.

“One of the benefits of marriage is divorce,” said Joyce Kauffman, a Boston divorce lawyer who has handled a dozen same-sex divorce cases. “But for a lot of couples, that benefit is very complicated and very costly in ways that heterosexual couples would never have to experience.”

In the case of the doctor, she and her spouse each gave birth to a boy fathered by the same sperm donor. They then adopted one another’s sons. Biologically, their children are half-siblings; legally, they are full brothers.

“Up to now, I’ve been lucky with the court,” said the doctor, who spoke on the condition of anonymity so as not to prejudice her court case. “Giving birth to one of our children has given me leeway because judges often show a preference toward a biological mother. I’ve spoken to other lesbian women who were in a similar situation, except that they were not the biological mothers of their children, and, in my opinion, they were not treated as fairly by the court.”

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This is just one of the many drawbacks of using the court system to make decisions about your divorce and custody. A judge is typically unwilling and unable to expand or extend the scope of the standard legal framework even if it is the most just solution.

However, mediation allows same-sex couples to develop fairer, more practical divorce and custody agreements. In same-sex mediations, as in all mediations, the couple participates in an open, honest dialogue about their expectations for the custody and property, while a mediator guides them through the process. Same-sex mediation differs from traditional divorce mediation in that the mediator will help the couple focus on issues that are unique to the legal complexities of same-sex relationships, including developing a parenting plan that accommodates both the biological and and non-biological parent.

The California Supreme Court’s recent ruling permitting same-sex couples to wed has sparked a whole new wave of dialogue within the family law arena. Divorce mediators and lawyers are particularly interested what role they will play with same-sex marriage dissolutions in the future.

A recent article in the Wall Street Journal written by Nathan Koppel delves into the potential complications same-sex couples may face as they end their marriages.

Next week, same-sex couples across the country who want to marry will be welcomed in California. But what happens if they later want to divorce?

That is one of the many legal issues that could confront California newlyweds who return to home states where same-sex marriages are prohibited. Unlike a Massachusetts ruling a few years ago, a landmark court ruling last month allowing same-sex marriages in California will permit almost any out-of-state couples to wed there.

But that doesn’t mean their lives after the wedding will be easy. Some gay and lesbian couples joined by marriage in Massachusetts or Canada, or under civil unions from, say, Vermont, contend with legal limbo in other states. Among the tricky issues, apart from divorce, that can make the honeymoon feel decidedly over are employee benefits, bankruptcy filings and inheritance rights.

John McCall Jr., a Dallas lawyer who represents gay and lesbian clients in property and custody

Cassandra Ormiston and Margaret Chambers were married in Massachusetts in 2004 but tried, in vain, to divorce in Rhode Island, with the state’s high court saying last year that the state defines marriage as the union of a man and a woman. Now, Ms. Ormiston is trying to establish residency in Massachusetts to divorce there. disputes, says that thanks to the legal thicket same-sex couples can face, his clients “over and over again tell other couples considering marriage to run in the other direction.”

To read the entire article, click here (Requires WSJ online subscription)

One of the benefits that mediation provides to both heterosexual and homosexual is that much of the heavy lifting of the divorce is done away from the courtroom.  This allows the couple to prepare and resolve potential legal issues together before they are under the spotlight of the judge and likely the media.  While mediation can not defend against all of the obstacles that will block a same-sex couple from an easy divorce, it does alleviate some of the problems the couple will face.