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 I.R.S. Makes Same-Sex Divorce A Bit Easier – for Some Couples

The IRS recently issued the guidelines we have been waiting for since the U.S. Supreme Court invalidated the Defense of Marriage Act.  The tax rules affect all married same-sex couples – while their relationship is intact, but also when things go asunder.  For those in intact marriages, some of the couples will enjoy benefits, whereas others will face higher taxes, due to the “marriage penalty.”

But as those who have been through a divorce recently have learned, one of the ironic burdens of DOMA was the lack of the tax protections that straight couples have always received upon divorce.  The “benefits” came in the form of being able to transfer assets and pay (and receive!) alimony without having to pay tax on those transfers.  The burden of double taxation was especially unfair, since these spouses had already paid their full share of taxes when the money was earned.   Now, thanks to the demise of DOMA, same-sex divorcing couples will enjoy the same freedom to transfer assets that straight divorcees have always had.  Splitting up a bank account, transfering ownership of a house, or paying spousal support (aka alimony or maintenance) can all be done in whatever arrangement the couple agrees to, without worrying about having to pay additional taxes on these payments.

Once DOMA was invalidated we knew that same-sex married spouses in recognition states would be exempt from taxation on these transfers.  However, there were two classes of couples whose fate was uncertain: those living in non-recognition states, and those who have marriage equivalent registrations, such as domestic partnerships (in CA) or civil union (in New Jersey).    The IRS said yes to the coverage for those in non-recognition states, but said no when it comes to those in marriage-equivalent registrations.

Here’s what this means.  If you are living in a non-recognition state (i.e. a state that doesn’t honor your marriage) and you are breaking up, and you are dividing up assets or helping each other out financially, you won’t owe any federal taxes.  Thus, even if your state doesn’t recognize your marriage, and even if you have to travel to another state to get divorced, at least the federal tax authorities won’t burden you with additional taxes.

But for marriage-equivalent registrants, there are still tax problems.  Under state law you may have to pay alimony or give some of your investment account to your ex – because those are some of the duties of being in a marriage-equivalent partnership.  But because the feds don’t recognize you as “spouses” you don’t the spousal tax privileges.  You will be faced with the same tax burdens – and tax uncertainties – that those in same-sex partnerships have faced for the past eight years.

We think this is unfair.  If the state considers you married, then the feds should fully recognize that status – even if it is called domestic partnership or civil union in your state.  Eventually, this problem will go away – in part because many of the states that now offer marriage are “upgrading” the registered partners into marriage.  Also, if your relationship is still intact, and you are worried about future tax problems, you can get married now – and then if you later divorce you will have all the tax protections as a divorcing spouse.  And finally, there are legal advocates working to persuade the IRS to loosen up these rules, and include divorcing domestic partners or civil union registrants into the scope of the tax exemption.

This is definitely complicated – and if you are going through a break-up and significant assets are involved, we urge you to consult with a tax expert who knows the rules for your particular state.

Wedlocked No More – If You Married in Canada

One of the nastiest problems facing same-sex couples has been the inability to get divorced – called “wedlocked.”  This can happen when a couple travels to a state (or country) that allows same-sex couples to marry – even if they live elsewhere, and then the couple breaks up.  Many folks don’t know that most jurisdictions have a residency requirement for getting divorced, to prevent spouses from fleeing from one state to another one to avoid heavier financial obligations upon divorce.  This isn’t a problem for straight couples – they can get divorced wherever they live.  But if you live in a non-recognition state there’s a decent chance the courts there won’t grant you a divorce, asserting that this would be a form of recognition of your same-sex marriage.  It’s totally illogical to me, but so it goes.

Recognizing this problem, several states (including D.C. and California) have implemented statutes that say if you got married in their jurisdiction and live in a recognition state, you can get a divorce in the place you married, even if you are not living there at the time of the break-up.  Canada has finally, after several years of prodding by many activists, enacted similar legislation.  This means that if you married in Canada and live in a state that won’t grant you a divorce, you can get “unlocked” from being “wedlocked” without having to move to Canada.

One arena of uncertainty involves money, property or custody disputes.  Most likely you will need to work these out in a negotiation, and if that’s not possible, submit them to a local court.  However, that court may not treat you as a married person, and so you might not get the alimony or property settlement you think you’re entitled to.  But at least you won’t be forced to stay married to your ex forevermore.

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

Access to Canadian Divorce Courts

As has been noted elsewhere, one of the biggest problems facing same-sex married couples is access to divorce, if they live in a non-recognition state.  Most places don’t require residency in order to get married, but they do require some duration of residency to get divorced.  There’s a long history behind this rule, called the domicile rule, having to do with preventing angry spouses from fleeing across state lines to avoid the financial burdens imposed by their state of residence. But these rules never anticipated the current situation, where a couple can be legally married in one state, but not be recognized as married in their home state.

California recently enacted a law allowing couples that married in California to come back here for a divorce, even if they live elsewhere, if their home state won’t grant them a divorce there.  A similar law has been proposed in Canada, but has not yet enacted.  The Canada situation raises some interesting challenges and questions about the complex situation now facing same-sex married couples.

First, the law would confirm that the marriages entered into in Canada are in fact valid, even if the couple lived in a state that didn’t allow same-sex couples to marry.  This was seen as necessary by some, because a government lawyer had previously asserted that the marriages were not valid if the spouses lived in a non-recognition state.  That would indeed be confusing: consider what would happen to a couple from Arizona who went to Canada to get married, and then moved to California.  California would ordinarily recognize their marriage, but if it wasn’t valid in the first place, that would create a serious problem.  This legislation would solve that problem.

Second, it appears that the legislation would only grant a “status” divorce, allowing the couples to dissolve their marriage, but would not be allowed to issue orders regarding child or spousal support, and probably not about financial or property claims either.  This is a good thing, as it would probably not be fair to extend substantive Canadian marital law to a couple that had never lived there.  But what should the couple do if they have legal conflicts over money and property?  They would still be left with no court to go to.  That can be a real problem for some couples, but better to have this legislation in effect than not.

Lastly, the proposed legislation imposes some rather steep thresholds in order to obtain a divorce.  Unless both spouses join in the request, the petitioner is supposed to get an order from his or her local court affirming that the other spouse is unwilling or unable to join in the petition.  It isn’t at all clear how a spouse would get such an order, if they live in a state that doesn’t recognize their marriage in the first place.  And, a year of separation would be required before a same-sex divorce could be granted – a requirement that is not imposed on straight divorces.  

No telling when or even if the Canadian parliament will pass the proposed legislation, but it’s good to hear that they are thinking about the problem.  Of course, if every state in the United States started recognizing same-sex marriages, this problem would disappear.  Until then, however, same-sex couples may remain “wedlocked” for some time to come. 

Bigamous Marriages in Massachusetts

The Massachusetts Supreme Court has recently issued an important ruling, holding that a prior Vermont Civil Union is equivalent to a marriage – and therefore the subsequent marriage of on of the civil union partners was bigamous.  The case was brought by Todd Elia-Warnken against his Massachusetts spouse, and can be read in its entirety at http://www.glad.org/uploads/docs/cases/elia-warnken-v-elia/elia-sjc-decision-7-26-12.pdf.

The analysis of the court was logical and, in my mind, entirely fair.  The judges ruled that the Vermont civil union was a “marriage equivalent” registration.  Thus, since Todd and his civil union partner had never obtained a marital divorce of their civil union Todd’s subsequent Massachusetts marriage was bigamous.  Ironically, while it invalidated Todd’s Massachusetts marriage, the broader principle of recognition of the Vermont civil union is what is most important. 

There are two key consequences of this ruling.  First, those who registered as civil union partners in Vermont but live in Massachusetts will be treated as married — and that is a good thing for couples living together, or having to go through a divorce in Massachusetts.  It means that all of the rights and duties of marriage will apply to those couples.  The second consequence is that if anyone has married someone other than their civil union partner, without having obtained a dissolution of their civil union, is in a bigamous marriage.  They will need to go back and dissolve their civil union – which they can do in Massachusetts – and then marry again their new partner. 

It is most likely that other state courts will follow the lead of Massachusetts, and treat the Vermont civil union as a marriage when it comes to deciding if a subsequent marriage is bigamous.  This may be inconvenient for the partners who failed to get a dissolution before remarrying, but it’s the right decision.