Marriage as a Framework for Divorce

One of the least appreciated “benefits” of marriage is the framework it offers couples in the process of divorce, should their relationship come to an end. State legislatures have worked for decades to refine the legal dissolution process, and while the system is far from perfect — and it can create unexpected problems for some couples — it offers a clarity of rules and a rational process that can be very useful in the heated emotional atmosphere of a break-up. The rules are both substantive and procedural, and both aspects are often helpful.

On the procedural dimension, most state court rules mandate an exchange of financial information, provide access to a judge who is specially assigned to dissolution disputes, and provide a methodology for determining parentage and resolving custody disputes. In most states there are significant initial filing requirements and formal timelines for finalizing the dissolution. Most important to note is that if the couple is able to work out all disputes the court process need not be protracted or expensive.

On the substantive side, the divorce rules establish a baseline for determining who owns what asset and who is responsible for the couple’s debts, and provides more general rules for resolving disputes about property and other assets, such as retirement benefits or payment of post-separation support. While to some folks the rules are an unwelcome imposition of a normative set of guidelines, there are underlying principles of fairness and mutuality of support that form the basis for these rules. Rather than viewing the relationship as a mere “contractual” deal, the marriage rules incorporate the values of care and support over time, a respect for the fiduciary obligations of the parties, and restrictions on the disposition of assets without mutual consent.

In other words, a legal marriage (or its equivalent in the domestic partnership or civil union states) binds the parties to participate in a judicially supervised dissolution process. It can be time consuming and expensive, and it can result in an allocation of assets that is different from what might have occurred in the absence of such regulation. In light of the changing nature of the rules for same-sex couples, there can be many legal complexities to fight over, for couples that want to go into battle. But for many couples, the divorce process offers a more rational and more equitable outcome.

A “good divorce” is never a reason to get married or legally partnered, but in many instances it may end up being an unanticipated benefit of “making it legal.”

The Times Have Surely Changed

I quipped many years ago that when the New York Times started running same-sex wedding announcements, we would know that our relationships had moved into the social mainstream. Happily, we’ve been able to enjoy these announcements for nearly ten years now. One such announcement this month provides a vivid illustration of how dramatically our lives have been transformed in the past twenty years, and the couple’s poignant story – and their possible legal complications – mark them as “poster children” for the successes of our movement — and also, for the legal challenges same-sex couples continue to face.

Lavi Soloway is a founder of Immigration Equality and a partner in a top-notch immigration law practice in New York City. He’s been a single dad living in New York, and he and his boyfriend (they met on line, no less) recently married in Canada. So, we have a same-sex step-parent, a Canadian marriage, and spouses living in New York or California. Fortunately, Lavi had already immigrated to this country, but if he hadn’t done so, the federal disregard of their marriage would have severely hampered his relocation. His earlier adoption illustrates the challenges some gays and lesbians still face in adopting children — either because their state doesn’t allow gays to adopt at all, or because they are trying to do an international adoption. In many jurisdictions a same-sex couple cannot adopt a child as a couple, and in many states the “second parent” still can’t become a legal parent after the first parent has completed the adoption. As for their Canadian marriage, New York state will probably recognize it, but possibly not for all purposes (such as tax treatment), but with the signing of SB54 we now know that their post-Prop 8 marriage will be recognized if they relocate to California, though won’t be “designated” as a marriage, whatever that means! Most troubling, as of 2009 their marriage will not be recognized by the federal authorities, which could create a plethora of tax and legal problems regarding their relationship and the future legal issues involving Lavi’s child.

Hopefully these barriers will be removed before this newly-traditional form of family faces any significant legal problems — but in the meantime, congratulations to Lavi and Sebastian on their very romantic story!

The Realities of Economic Discrimination

A recent New York Times article provides ample evidence of the widespread financial costs of the federal (and in 38 states, the state) non-recognition of same-sex relationships.  There has been far too little substantive research into this aspect of discrimination, and so these stories are very useful in telling our stories to a broader audience.  I am deeply appreciative of the excellent work of these reporters, and I hope this article will stimulate similar investigations and reports.

The intersection of the legal, financial, and emotional ramifications of discrimination is a very complex landscape. Consider, for example, the simple detail of transfer taxes triggered by adding your partner to the title of your residence, which can have myriad negative consequences: it’s not just the immediate tax (which can be as high as $5,000 in some locations), it’s how it may discourage you from filing the new deed — which then can cost your partner as much as $75,000 in capital gains taxes when you later sell the house. This sort of complication can also leave a couple with conflicts over who really owns the house if there is a break-up, resulting in legal fees and added strain emotionally. Layered on top of these details is the understandable resentment over the discriminatory laws, which can have untold negative consequences on the parties.

The same goes for less quantifiable arenas such as our immigration laws. Not being able to sponsor one’s spouse for immigration can result in legal fees, travel costs, and in many instances, relocation to another country with a severe loss of career opportunities. The emotional consequences can be devastating as well, and it is nearly impossible to monetize those ramifications.

Revealing these details is an essential component of telling our story — and hopefully, such stories will help build a stronger foundation for the arguments in support of full marriage equality for same-sex couples.