The Not-So-Gay Divorce
For some, the right to marry has led to the fight to divorce
On November 18, 2003, the Supreme Court of Massachusetts ruled that the state could not refuse to marry same-sex couples. Marriage became available to gay couples in May of 2004 and by 2006, over eight thousand gay and lesbian couples had been married in Massachusetts. However, now that eight states have decided to grant relationship rights to same-sex couples, the need for same-sex divorce (or legal relationship dissolutions) has become an ongoing issue. Presently, couples who were married in Massachusetts or received civil union licenses in Vermont, but were not residents of those states, are not eligible to get divorces there.
Marriage is a profound expression of love and commitment, but also an enormous legal institution touching on nearly every area of life. Marriage entails privileges, as well as responsibilities. Couples thinking about marriage are urged to consider the complexities of the institution, because undoing a legally binding union is often more complicated for same-sex couples.
According to The National Center for Health Statistics of the Centers for Disease Control and Prevention, almost half of all marriages between people of the opposite sex will end in divorce and gay marriages are subject to those same challenges and pressures plus some others. Married gay and lesbian couples face discrimination by the federal government. Due to a 1996 federal law, they are denied the 1,138 federal protections and benefits of marriage. In addition, they face laws and constitutional amendments from other states that, as yet, do not recognize their legal commitment. While completely accurate statistics are difficult to get, The Boston Globe reported in January 2006 that between 35 and 45 divorce actions in Massachusetts had been filed by same-sex couples.
Filing For Divorce in Massachusetts
In Massachusetts, married same-sex couples may seek to separate or divorce under Massachusetts state law, yet with some federal complications. Divorce provides a married couple with the legal means of dissolving their union, dividing their property, and addressing the custody and support of their children. Same-sex couples contemplating divorce should be aware that federal discrimination can affect their ability to divide the assets of their marriage. Federal protections available to married couples allow their house and other assets to be transferred or sold without tax consequences. The court may also split the pension earned by one partner during the marriage without tax consequences and allow a person to continue receiving health insurance coverage through a former spouse. These protections are not currently available to same-sex couples.
When filing for divorce, the court must be provided with legal reasons known as the grounds for the divorce. In Massachusetts, virtually all divorces use the “no-fault” ground of “irretrievable breakdown of the marriage.” This means neither spouse is required to allege fault or blame on the other spouse for the breakdown of the marriage. Massachusetts residency requirements must also be met for the court to accept divorce cases. If the grounds for divorce occurred in Massachusetts, then one partner must reside in Massachusetts. If the grounds for divorce occurred outside the state of Massachusetts, one spouse must be a Massachusetts resident for at least one year. A divorce complaint must be filed in Massachusetts Probate and Family Court in the county where you and your spouse last lived together. If neither spouse lives in that county any longer, one may either file in the county where he or she lives or where the spouse lives. In the event of hardship or inconvenience to one of the spouses, the court having jurisdiction may transfer the hearing to the court in the county in which that spouse resides. There are expenses involved in filing for a divorce, but there is a process for waiving these fees depending on financial hardship.
Once married, spouses remain so until divorced by the state. A divorce will address deciding issues such as: the grounds for divorce, child support, custody and visitation, division of assets, property and debts, alimony or support for a spouse, name change, and in domestic violence situations, orders providing protection. A person may not remarry until his or her divorce is complete.
In addition to divorce, couples in Massachusetts also have the option of living apart and petitioning the court for a Complaint for Separate Support or a Complaint for Custody. This is a way to resolve issues without formally ending the marriage.
What About Dissolving a Civil Union or Domestic Partnership?
Unfortunately, you cannot simply return to a state for a long weekend and have a civil union or domestic partnership dissolved. For a couple to legally dissolve a civil union in Vermont, for instance, one partner must live in Vermont for six months before filing divorce papers. Moreover he or she must remain there for a year before the court will grant the final dissolution and resolve related matters, such as the division of property and financial support. Typically, when it comes to divorce law, a court can only hear a case if one or both people live in the state that has jurisdiction.
Civil unions, like marriages, represent a legal commitment and status that should be recognized from state to state. So far, however, there have been mixed results from the few courts outside of Vermont that have attempted to determine whether they have the authority to dissolve a civil union. For example, in March 2003, a Texas court became the first court outside Vermont to grant the dissolution of a civil union. But shortly after, Texas Attorney General Greg Abbot intervened, saying the court could not grant a divorce where no “marriage” had existed. In response, State District Judge Tom Mulvaney ordered a new hearing to settle the matter.
In 2002, a Connecticut state court turned away a same-sex couple’s request for dissolution of their union, saying it lacked the authority to do so. That case was later appealed to the Connecticut Supreme Court, where a decision has not yet been reached.
The only way to definitively find out whether a state court can dissolve a union is to go to court. But because the dissolution of civil unions outside Vermont is a new frontier in the law, it is conceivable that the verdict could be unsatisfactory to the couple, as well as the LGBT community, and set a precedent for a wide range of other cases.
Even without a civil union, a member of an unmarried (same-sex or heterosexual) couple may use a variety of legal theories, including contract theories, to persuade a court to treat a breakup like a divorce for the purposes of property division, debt allocation or support. If a couple has been joined in civil union, such arguments may be even stronger. Whether they ultimately succeed will depend on the laws and the courts involved in the jurisdiction. It is critical to consult an attorney before taking action.
If a state court refuses to dissolve a civil union, there are steps couples can take to separate. If former partners can amicably disentangle finances (perhaps through a mediator), they can sign an agreement to officially separate their finances. This will minimize the chances that either party could use the civil union to impose further legal obligations on the other in the future.
Some attorneys are offering same-sex couples a way to legally end their relationship that keeps them out of court and offers them help from a range of experts whose interest is in getting a settlement favored by both parties. New York’s LGBTQ Collaborative Law Group specifically use collaborative practice–a type of law that was traditionally used for hetero couples getting a divorce, but has proven to often be gay couples' best legal option when they're wrangling out a separation agreement. Couples never see the inside of a courtroom or go before a judge, keeping them safe from unsympathetic judges and unfair state laws. The process uses conflict resolution and mediation techniques (as well as any other specialists the couple wants to pull in, such as financial planners, child development specialists, etc.) to create a binding legal that settles financial, property, custody and support issues that couples face.
“To have to rely on a court system that doesn’t protect your rights or legally recognize your identity is scary—very scary,” says Mariette Geldenhuys, a Collaborative attorney who specializes in LGBT family law in New York. “Collaborative Practice allows couples to craft a creative solution that uniquely fits the needs of each person and their children.”
Yvette Cid entered a domestic partnership in Maplewood, New Jersey in the summer of 2004. She told GO she originally went to file for dissolution to that partnership at the superior court in Jersey City. Upon doing so, court officials instructed her to go to city hall where she was redirected back to superior court. Ms. Cid is now seeking legal council from Garden State Equality but has been hassling with this process for close to a year and a half.
Before going to court, it’s advisable to consult with a local attorney familiar with gay, lesbian, bisexual and transgender law or a national LGBT legal organization such as Lambda Legal, the American Civil Liberties Union’s National Lesbian and Gay Rights Project, or the National Center for Lesbian Rights. In New England, consult with Gay & Lesbian Advocates and Defenders.
If you are an out of state resident looking to marry in Massachusetts or get into a civil union or domestic partnership and do not reside in the state in which your relationship is being recognized, you will not be able to dissolve your legal binding relationship there. If the state you live in does not recognize your relationship, it will not recognize your separation either. You may wish to take that into consideration before getting married and wait until more concrete solutions have been addressed in legislation. Until there is more certainty about how same-sex separations will be dissolved, it is a good idea to supplement a legal union with a legal contract that outlines the way a couple would like to resolve financial issues in the event of a breakup. Such a contract would divide property and debt and address the possibility of support payments.
Currently, if an underage, heterosexual couple were to cross state lines and get married, their marriage would be recognized in the state they currently reside and any other state in the U.S. If that relationship were to end, the couple would also be able to receive a divorce or annulment in any state. They would not have to return to the state they were married in or face legal issues in the state where they live. Obviously this is not the case for same-sex couples—not by a long shot. The good news is, while we continue our fight for equal marriage rights, the LGBT community pushes equality for same-sex divorce as well.
Information provided by Human Rights Campaign (HRC) and Gay & Lesbian Advocates & Defenders (GLAD). To read more about the laws and legislation in your state go to hrc.org/Content/ContentGroups/Issues1/Marriage/Dissolving_a_Civil_Union.htm
If you have questions or need lawyer referrals, please call GLAD’s Legal InfoLine weekdays between 1:30 and 4:30 pm at 800-455-GLAD (4523) or 617-426-1350. You can also obtain information and access GLAD’s publications at glad.org.
We recommend two New York-based attorneys who specialize in this field: Yetta G. Kurland (212-253-6911) and Roslyn A. Quarto (212-557-0200).