Surveying the Latest News on Same-Sex Divorce

The recent Texas Court of Appeals ruling is a setback for the San Antonio lesbian couple trying to get divorced.  As we’ve seen throughout the country, many couples got married even though they lived in states that didn’t recognize their marriage, not realizing the problems they would encounter if their relationship unraveled.  In most such situations, they can’t get divorced in their home state, since many state courts have taken the position that granting a divorce is form of recognition of the marriage.  However, they can’t get divorced in the states where they got married, since most states require you to be a resident in that state in order to get a divorce – to prevent spouses from escaping the divorce laws of their home state.  These couples are, in effect, “wed-locked,”

Several states have modified their marriage laws to allow for “non-domicile divorces,” which means you can get divorced there even if you aren’t a state resident, if you married in that state and live in a state that won’t grant you a divorce.  California is one of the states that now provides this option, both for state-registered domestic partners and married spouses.   But that law doesn’t help most such couples – and even if some of them could go to the state where they married to get divorced, that can create additional expense and legal problems, especially if they have children.

The San Antonio story is particularly painful, as one of the women is not considered a legal parent of the couple’s child under some readings of the law.  If their marriage is not recognized, she may not be honored as the child’s second legal parent, because she didn’t do a second-parent adoption of their child.

The moral of this story is clear: if you live in a non-recognition state and want to get married, do so in a state that allows you to get divorced even if you don’t live in that state.  Of course you should hope that your marriage lasts until “death do you part,” but that is a rarity these days.  Eventually we hope (and believe) that every state will recognize same-sex marriages, for all purposes, including the right to get a divorce.  But until then, don’t put yourself at risk of being wedlocked. And if you are raising children, don’t count on your marriage to protect you as a legal parent — insist on getting a second-parent adoption.

The last thing you want to be is a test case, even an “interesting” test case.  Protect yourself by being realistic about the lingering legal barriers to full marriage equality and plan accordingly!

New Challenges in Texas gay divorce case

New Challenges in Texas gay divorce case

Emerging Issues in Same-Sex Dissolutions

I’m giving a series of talks in the coming month about the emerging issues arising in same-sex dissolutions, and the issues are indeed complicated.  For some couples, there are messy legal issues.  Many couples have been together for a long time, but only state-registered or married for a few years.  For those couples the legal rules treat their pre-marital period as an unmarried couple, even if they (or one of them!) thought of themselves as married.  How should money and property be divided up if it was accumulated during that period of time?  The one with the assets will typically say “We weren’t married so it’s all mine,” whereas the other one will claim they were “like a married couple” from the start – and should be treated as such.  

The other legal issue is that of the couple that chose to be unmarried or unregistered — but one of them now regrets that choice.  It may be that they really didn’t think about the consequences, and now, one of the partners is going to be handicapped as a result.  True, California law allows unmarried partners to make financial and property claims, but these are hard to win.  Many folks – including me- believe that there may be compelling moral or practical justifications for sharing assets at the time of a dissolution, even if the law doesn’t compel this result – but figuring out what is fair is never easy.

The next level of problems are those that arise when the legal rules are in direct conflict with how the couple -or one of the spouses – thinks is fair.  Many gay and lesbian couples registered or married as an act of civil protest, or simply to gain insurance benefits.  They really weren’t thinking about the long term financial consequences – and unlike many straight couples, they may not have realized that their marriage or registration would pull them into the marital law system.  Sure, these same problems arise in straight divorces, but my sense is that the gap between the legal rules (based primarily on customs of traditional heterosexual marriage) is greater in our community.

Lastly, there are the more elusive dynamics on the emotional front.  Many in our community are alienated from our families of origin, and many gays and lesbians had difficult childhoods.  These emotional backgrounds can surface in a dissolution, where the real problems of financial strain and emotional vulnerability trigger these long-standing wounds.  Winning the right to marry doesn’t really help all that much if you are in the midst of a divorce – making the dissolution process even more difficult.

There are no easy answers, but there are a few insights that can help.  First, we all need to recognize that the legal system is not a perfect system, especially for us.  The rules are unclear and constantly changing, the judges are not used to our lives, and the legal advocates are themselves often confused and uncomfortable.  Second, we need to acknowledge that each partner experiences her or his own reality, and there is no single “truth” about the past – especially in love relationships.  Third, keep your eyes on the goal — which is to resolve disputes with a minimum of cost and aggravation, and a minimum of pain to each party.  Be willing to admit uncertainty and reach a compromise on the disputed issues – rather than seeing the divorce as the last change to take revenge on the person you formerly loved.  I can assure you that you will feel better in the long run! 

The Impact of the Supreme Court’s Big Decisions

Yesterday the United States Supreme Court removed the most important barrier to marriage equality in this country: invalidating that section of the Defense of Marriage Act which prevented the federal government from recognizing valid same-sex marriages.  In a sweeping decision that honored the liberty and equal protection rights of lesbians and gay men, the Court ruled that when a couple has a valid state marriage, the federal government must extend all of its benefits to that couple.  For many couples the federal benefits are the most important aspects of being married – including the immigration protections for bi-national couples, the Social Security benefits upon divorce or death, and the federal tax exemptions afforded to married spouses.  This ruling also clears the way for same-sex couples to transfer assets tax-free upon marriage or divorce, including retirement accounts, and provides insurance and other benefits for the spouses of federal employees.  It’s a momentous change for our community, extending the legitimacy, protection and respect from the federal government that we have long deserved.  And perhaps on a most symbolic level, it removes the scourge of a bigoted law passed in 1996, without having to endure a congressional repeal fight.  

The Court also rejected the appeal of the decision invalidating Proposition 8, which banned same-sex couples from marrying in California.  While the Court dodged a substantive ruling and relied on the appellant’s lack of legal standing to toss out the appeal, the end result is that marriages will resume in California within a month or so.  

There are still two important areas of uncertainty for many couples, however.  There are tens of thousands of couples in a marriage-equivalent partnership, either domestic partnership or civil union, in eight states, and we don’t know which (if any) of the federal benefits will be extended to those couples. Each federal benefit has its own legal framework, and it may take several years to work out these details.  If having a federal benefits is crucial for you, it may be advisable to get married, even if you are already state-registered.  That way you don’t have to worry about being a test case!  

The other area of great uncertainty involves couples that have a valid marriage, but live in a state that doesn’t recognize their marriage.  The Court’s decision on DOMA only dealt with the situation where the couple’s marriage was recognized by their home state, and it didn’t address the fate of couples living in non-recognition states.  Most federal laws look to the state of residence, not where the marriage was entered into.  Thus, if you live in a non-recognition state you will need to inquire as to the particular rules applicable for the benefit you are seeking.  If receiving the benefit is crucial and you don’t want to wait out the legal fight that will ensue over this issue, you may need to relocate to a recognition state.

One hopes that the strong language of the Court’s decision on the DOMA appeal, as well as the emerging social acceptance of marriage for same-sex couples, will lead to the repeal or invalidation of the DOMA laws in existence in more than 30 states.   This will eliminate the problems that exist for couples in those states, and will ensure marriage equality for all couples, wherever they reside.

One last word — remember that the right to marry is not the duty to marry.  Each couple needs to make their own decisions about whether marriage is right for them, legally, financially, and emotionally.  Marriage includes significant financial obligations, for shared debts, shared assets, and possible spousal support upon dissolution.  It also requires a judicial dissolution if things don’t work out, which can be difficult and expensive.  We all should celebrate the legal and political victories of this wonderful day – but don’t let the euphoria obscure the more complicated personal questions about what is best for you and your partner!

10 Reasons to Get Married — in France

I recently spent some time in France, coinciding with the passage of the same-sex marriage law there.  I happened to be reading the latest issue of Tetu, the glossy gay French magazine, and there was an article titled “Ten Good Reasons to Get Married – or not!” and I thought it was interesting to see how folks there think about this decision.   Here’s a summary of the reasons, pro and con:

1.  Marriage offers many legal protections, beyond what non-marital cohabitation or civil union offers; however, the benefits only accrue upon divorce or death — and who wants to get divorced or die?

2.  Getting married can revitalize your relationship in a positive way – but don’t count on it saving a troubled partnership.

3.  Getting married brings gifts – but that really isn’t a good reason to imitate straight couples.

4.  Geting married greatly simplifies the process of both partners becoming legal parents – but it’s not a simple process.

5.  It’s a great excuse to have a party, but be careful – bringing all your relatives together could be a social disaster.

6.  Getting married should save you money, particularly in taxes, but it also can be expensive if you end up getting divorced.

7.  Getting married bestows social legitimacy on the couple – but it also can import the heteronormative rules (such as fidelity) in ways that are restrictive to the couple.

8.  Marriage is likely to “tame” your libido – but one wonders what that would really mean for homosexuals!

9. Your parents will certainly be pleased to see you get married – but do you really want to base your decisions on what makes your mother happy?

10.  Marriage makes most assets “community” in ownership, to be shared upon dissolution  – which can be beneficial to at least one partner  – but it also can be a “cost” that arises if the couple breaks up. 

Israeli Civil Court Grants Gay Divorce

In a landmark legal decision just issued in a Tel Aviv family law court, a judge has granted an order of divorce for a same-sex couple that married in Canada.  Divorces are generally granted only by religious courts in Israel, and the civil family court usually only steps in for interfaith straight couples that married overseas, since they are unable to get married (or, until recently, divorced) in Israel.  Jewish couples – even those that married in the United States or elsewhere – still have to go through the rabbinical courts to obtain a divorce.

Several years ago the Supreme Court in Israel ruled that the government was required to register same-sex couples as married, if they got married overseas, though it was uncertain as to what that registration really meant.  For the most part these couples were not given all of the rights of married couples directly, as a married couple, though most of them were treated as equivalent to married, as cohabitating couples.  But it’s been a rocky road for many such couples, with different government agencies and courts treating them unequally.

The judge’s logic in this case was simple.  He based his ruling on two key points: first, if the government was going to register a same-sex couple that married overseas as a married couple, then they were required to register their divorce as well.  If they refused to do that, then the couple would be married unto eternity – and never again be acknowledged as two single individuals.  Second, it was seen as inherent in the court’s equitable powers to grant the divorce, as something that is only fair for the couple.

What’s most interesting here is who was involved in this case.  Uzi Even, the petitioner, was the successful claimant in a variety of gay rights cases in Israel, involving security clearances, military benefits, and adoption.  Perhaps it is only fitting that he would also be the ground-breaking claimant in a divorce case, demonstrating most dramatically that the right to a divorce is truly one of the essential “benefits” of marriage.

Thanks to Judith Meisels, the attorney who brought the case on Uzi’s behalf.  She is one of the best family lawyers in private practice in Israel, and she has persevered in her representation of lesbian and gay couples in their quest for equality under the law, with regard to marriage, surrogacy and parenting, and now divorce.

But before anyone concludes that the legal issue of access to civil divorce is resolved for all purposes, it’s important to keep in mind that most likely this decision will be appealed – or alternatively, the government may defy the court’s order and force the petitioner to file an appeal. Thus, it will likely be several years before the Supreme Court of Israel rules on this issue — and the outcome is far from certain.  One final note: ironically, this decision on behalf of a gay couple could pave the way for straight couples to obtain civil divorces, something that Jewish couples have been unable to obtain so far.  It would truly be terrific if a gay activist couple ended up helping to extend civil legal rights to straight non-religious couples in Israel!

For more information on the case check out: http://www.haaretz.com/news/national/court-grants-divorce-to-gay-couple-for-first-time-in-israeli-history.premium-1.481951

The Problem of Bigamous Gay Marriages

Imagine discovering that your husband is still married to someone else!  In the past that was just a problem for straight couples, but now it is cropping up regularly in the gay community, and the legal issues are even more complex for us.  What constitutes a marriage, and when must there be a divorce in order for someone to re-marry?  With the wide variety of legal options out there (civil union, city domestic partnership, state-registered partnerships), many folks are uncertain as to when they need a legal divorce.  And, if they married in one state but live in a non-recognition state now, it may not be so easy to get a divorce.

This is just the problem that arose in the case of Elia-Warnken v. Elia (2012 WL 302981, July 26, 2012, in the Supreme Judicial Court of Massachusetts).  Todd had signed up for a civil union registration in Vermont with a partner in 2003, but the couple had never formally dissolved their union.  Then, a few years later, Todd re-partnered, and in 2005 he married his new partner, in Massachusetts.  In 2009, Todd filed for divorce from the new partner, and the new partner sought to dismiss the divorce action – on the grounds that they were never really married.  Putting aside the question of why Todd is hopping in and out of marriages so quickly, the legal question was whether the second marriage was void on the grounds of bigamy.

The Massachusetts court ruled – correctly I believe – that the Vermont civil union was equivalent to a marriage under Massachusetts law.  They decided this because of the doctrine of comity (each state should recognize the actions (marriages) of another state), and also, that it would lead to legal chaos to disregard a Vermont civil union.  While the civil union status was technically different than legal marriage, it invoked all the “rights and duties” of marriage and thus was equivalent to a marriage.  Since Massachusetts law deems a Vermont civil union as equivalent to marriage, the bigamy rules apply in this situation, rendering the second marriage void.

Thus, there was no need to “dissolve” the second marriage, nor did either spouse have any legal or property rights arising out of the second marriage.  By the way, Todd’s legal problems are not entirely over — he now has to formally dissolve his first marriage!