The Fight for Gay Divorce
California Lawyer

The Fight for Gay Divorce

September 2011

Illustration by Dan Page

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Almost eight years after California's first same-sex marriages were performed in San Francisco, some homosexual couples are finding that getting divorced is even knottier than getting married.

The legal status of gay marriage in California has been a roller-coaster: the 2004 San Francisco marriages were invalidated six months after they took place; in 2005 domestic partners were granted the same "rights and responsibilities" as married couples. Then, after the state Supreme Court legalized gay marriage in May 2008, voters outlawed it again the following November. Last year, federal district Judge Vaughn Walker ruled Proposition 8 unconstitutional - then stayed his own decision pending an appeal. The 9th Circuit Court of Appeals and the California Supreme Court are reviewing the decision.

The complexity of same-sex divorce is formidable. State laws vary, and tax status, parentage of dependant children, and even a period of premarital cohabitation raise uncertainties for gay couples. Throw in the lack of federal recognition of state-registered domestic partnerships and civil unions, and a strained marriage may begin to look easier than splitting up.

When parting couples cross state lines, their legal problems can multiply, says Frederick C. Hertz, an Oakland attorney and author of four books about gay marriage. For couples wed outside California who travel here and seek divorce, it "doesn't mean you'll get any of the rights or benefits of the dissolution," says Hertz. "It's a grey area. If there's something contested, you're going to have problems."

If a couple with a California marriage or domestic partnership leaves the state, any dissolution must occur according to the laws of the state where they reside. About 20 states will not divorce same-sex partners because their courts believe it would constitute recognition of gay marriage; at least two couples in Texas have run into opposition from the state's attorney general. The Rhode Island Supreme Court has ruled that that state has no jurisdiction to dissolve marriages performed in Massachusetts, and a gay couple that married in Canada has been denied a divorce in Oklahoma.

It is an area of the law in flux, says family law attorney Deborah H. Wald. "There's recent litigation in Massachusetts over whether that state would recognize a California domestic partnership in granting parental rights," she says.

Fifteen states do recognize same-sex divorce, but each has its own rules for establishing residency. California recognizes "equivalent registrations" from other states, but at least one member of the estranged couple must live here for six months before filing for divorce.

For a lot of California couples in domestic partnerships, the increased financial responsibilities of marriage, effective January 1, 2005, under AB 205, snuck up on them.

B. Kyle Childress, a San Francisco attorney, says this happened to him. When his partnership effectively became a marriage, the stock options belonging to his registered domestic partner became part Childress's. "It was the biggest point of contention" in their otherwise amicable divorce settlement, he says.

Assets and debts accumulated during marriage are divided equally in California, while inherited property or assets kept separate during the marriage are, for the most part, retained by the original owner. These community property provisions can be abused in a same-sex divorce.

Hertz says he's seen several instances in which "a high-asset gay person takes advantage of a homophobic law to say, 'We were only married 2 years, not 20.' "

Without a federal law, gays in marriages and registered partnerships lack the estate tax and retirement protections and Social Security benefits their straight counterparts enjoy.

With state-registered partnerships recently topping 100,000 nationwide, divorce seems destined to become the new gay marriage.

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