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Same-Sex Divorce

March 18, 2015

Coming and going, same-sex marriage and same-sex divorce is a challenge. Ending the marriage that was difficult to get in the first place (at least until recently) is far more challenging than ending a heterosexual marriage.

Unless the couple moves to a state that recognizes same-sex marriage and establishes residency (most commonly 6 months to a year), they cannot get divorced legally. The greatest challenge for these couples is finding a state that recognizes same-sex marriage and establishing residency to get a divorce. For nearly everyone, moving to another state just to establish residency is just not practical.

New York's new law allowing same-sex marriage, which took effect during the summer of 2011, promises a harvest of gay marriages, not just for residents but also for out-of-staters and, eventually and inevitably, a sizable number of divorces. "Other than a divorce attorney, no one goes to a wedding hoping the marriage will fail," quipped Manhattan divorce attorney Daniel Clement. Lost in the euphoria of the historic passage of New York's same-sex marriage bill is the inevitability of bitter break-ups. And with them, all the nuts and bolts that go with any divorce - support claims to resolve, property to divide and custody issues to settle. "The same issues present themselves with same-sex couples: How do we split assets? What do we do with the children?" Clement said. "The law doesn't change merely because you have same-sex partners."

Only months after Massachusetts passed its same-sex marriage bill in 2004, gay couples began filing for divorce - sometimes having to use outdated forms that still listed "husband" and "wife." The fact is, gay divorce has been going on here for years since New York courts recognize marriages performed elsewhere.

According to one source, officials predict that about 21,000 gay and lesbian couples will wed in New York in the law's first three years. If the state's current divorce rate of 8.4 percent holds, about 1,800 of those marriages will not survive.

In the United States, gays and lesbians can legally marry in New Hampshire, New York, Massachusetts, Connecticut, Iowa, Vermont and Washington, D.C. In California, with the passage of Proposition 8, gay and lesbian couples that were married between June and November 2008 are still legally married, but no new legal marriages can be performed in California. The question that many legal observers ponder is how can a court undo something that doesn't exist in the first place. That is the question confronting gay married couples wishing to un-couple in the state of Texas. Under a 2005 amendment to the Texas Constitution, same sex marriage is not recognized under Texas marriage laws. So what happens when a same sex couple married in another state sues for divorce in the Lone Star State?

In 2009, a Dallas judge addressed the question by striking at its root. In the Matter of Marriage of J.B and H.B., Judge Tena Callahan ruled the Texas law banning same sex marriage violates the Equal Protection Clause of the U.S. Constitution, thus upholding both the marriage and divorce as valid.

As reported by the Austin News, there is one more twist. The opposition to the divorce of an Austin same-sex couple is coming not from ever-vigilant Texas Attorney General Greg Abbott (who intervened in the case of J.B. and H.B.), but from one of the spouses involved. In the case of Angelique Naylor, her spouse is contesting the divorce by arguing that since the marriage is not valid, neither are the divorce nor the division of assets Naylor seeks. This finding might allow the contesting spouse to keep the lion's share of the house, business, and even the child the couple has together. Under Texas law, a married couple seeking divorce would usually divide assets equally under the community property laws of that state.

Patchwork of Laws

Right now there is a patchwork of differing marriage laws in the United States. Some states legally recognize same-sex marriage but do not allow marriages to be performed. Some both perform and recognize marriages (Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, and New York, as of 2011). Many more do not allow or recognize marriages.

Some legal scholars argue that the "full faith and credit" clause of the U.S. Constitution was enacted to avoid problems of non-recognition among the states. Until a decision from the Supreme Court rules on the constitutionality of each state's ability to refuse to recognize legal contracts of other states, problems like same-sex divorce will increase.

According to legal experts, here are a few of the problem areas created by the non-recognition of divorce:

  • In a heterosexual divorce, a judge may order a pension or retirement account to be divided, and laws (including QDRO) allow the division without triggering taxes or early withdrawal penalties. For divorcing gay couples, any court-ordered division of these accounts are not protected and do trigger taxes and penalties.
  • If real property is exchanged in a heterosexual divorce, capital gains taxes can be avoided. In same-sex divorces, there is no protection, and taxes are owed if due.
  • If cash is exchanged between a divorcing heterosexual couple and is the result of a divorce settlement, they enjoy the shelter of passing unlimited funds between them without taxes. Gay couples are not protected, and are exposed to taxes (in particular gift taxes) when couples exchange more than $12,000 in any one year.
  • In cases where alimony is awarded, tax law for divorcing heterosexual couples provides that the payer gets a tax deduction for alimony paid and the receiver must declare the income on their taxes. For same-sex couples, no tax deduction exists, and if the payment of money exceeds $12,000 per year, gift taxes apply.

As homosexual couples marry in one state and move to one where the marriage is not recognized, non-recognition promises problems in a variety of issues beyond just divorce, such as domestic violence, custody, and adoption.

Moreover, same-sex couples are not entitled to any federal marriage benefits, including Social Security spousal benefits or military spousal benefits. Under the 1996 Defense of Marriage Act (DOMA), no jurisdiction in the United States may be required to recognize as a marriage a same-sex relationship that is considered a marriage in another state.

Denying divorce denies justice, said Allen A. Drexel, a family law expert in New York with a large practice among same-sex couples. "The right to obtain a legal divorce is one of the most important, if least celebrated, rights of marriage," he said. The process of separation can bring out the worst in people, he said, and "the incentives to game-play and to engage in forum-shopping to take advantage of the inconsistent legal treatment exists."

Judges in Texas, Oklahoma, Rhode Island and other states have refused to grant divorces to lesbian or gay couples who went elsewhere to get married or have relocated from the state in which they got married, on the grounds that granting a divorce would constitute a form of official recognition of their marriage.

Most of these couples are not asking a judge to grant them any property or alimony since they've already settled those issues. They just want to get an order of dissolution. And the couples have good reasons for wanting the court order. Even if they have resolved their financial affairs, they need to get a divorce so they can be free of future liabilities, and so they will be able to marry, or legally partner with, their new romantic interest.

The legal antecedent of these problems stems from what is referred to as the "domicile" rule, which holds that couples ordinarily can only get divorced in the state where they reside at the time of their break-up, regardless of where they lived when they got married. The purpose of this rule, which goes back more than a century, is to prevent nasty husbands (or wives) from evading the divorce rules of the state they live in, by simply hopping across the state line to get a divorce in another state.

These rules may make sense for heterosexual couples that can always get a divorce in whatever state they live in, but they wreak havoc for couples who live in states that won't grant them a divorce under any conditions - even if they've reached a property settlement with their spouse. This is a vivid example of where the denial of the right to marry ends up as a denial of the right to get a divorce.

Fortunately, the California legislature has passed a bill (which was signed into law by Governor Jerry Brown) that resolves this problem - at least for those who came to California and got married there in 2008. It will also help those who may in the future get married in California, if and when Proposition 8 (which bans same-sex marriages) is repealed or ruled to be unconstitutional.

The new law went into effect in January 2012. It provides that if a couple got married in California but lives in a state that won't grant them a divorce (which is presumed if the state doesn't recognize their marriage), the California court will have jurisdiction to grant them a dissolution. The divorce case will be filed in the county where the couple got married, and the dissolution is supposed to be adjudicated "in accordance with California law."

There is a lot that remains unresolved in this new legislation, especially what it means to adjudicate a divorce in accordance with California law if the spouses are not residents. But for those who have been able to reach their own private settlement agreement, this will enable them at least to obtain a formal dissolution. And, while there is also some uncertainty on the details, chances are the dissolution will be honored in other states, even non-recognition states. This will allow the ex-spouses to enter into contracts as a formerly married person, and to be treated once again as an unmarried person.

In March 2009, even before New York passed same-sex marriage, then Governor David Patterson went on record as stating that his state will recognize same-sex marriages performed in other states. While not legally binding, it encourages couples looking for such state recognition.

Evidence that same-sex divorces are preceding in the courts in New York is appearing. An Appellate Division in New York has rules that a same-sex marriage contracted in Canada is recognized in New York. In Beth R v. Donna M, New York State Supreme Court Justice Laura E. Drager, in New York County, denied the defendant's motion to dismiss a divorce action on the ground that a same-sex marriage contracted in Canada is void in New York.

In a year-end 2007 Rhode Island Supreme Court decision, the court ruled that same-sex marriages in Massachusetts may not be dissolved in Rhode Island (Chambers v. Ormiston). In February of 2009, a bill was introduced into the Rhode Island General Assembly that would allow same-sex couples to divorce in Rhode Island.

On March 3, 2009, fifteen gay and lesbian residents from Massachusetts, who had wed there, filed a discrimination suit challenging the 1996 federal law that defines marriage as a union between a man and a woman. This group asserts that because of the 1996 Defense of Marriage Act, championed by President Clinton, it deprives them of benefits enjoyed by heterosexual married couples and renders them second-class citizens. Legal experts who follow this area of law predict this case will likely make it to the U.S. Supreme Court for a final decision

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