As the numbers of Lesbian, Gay, Bisexual and Transgender (LGBT) couples tying the knot in more jurisdictions increases, so do the number of failed marriages. So what does all of that mean for lawyers and the judicial systems in the states that sanction gay marriage? They are busier than ever.
Legal Issues for Married Gays
Legal issues facing gay and heterosexual marrieds differ “for specific reasons,” says Marcia Kuntz, Of Counsel with the Washington, DC firm of Smollar and Friedman. For example, since Federal law does not recognize gay marriage, rights and benefits available to divorcing heterosexual couples are not extended to divorcing gays. That’s because the Defense of Marriage Act (DOMA), enacted by Congress in September, 1996 and signed by President Bill Clinton, limits federal marriage benefits to heterosexual couples only.
The law requires the federal government to recognize only those marriages between a man and woman, even if gays are married in a jurisdiction sanctioning those nuptials. DOMA also allows individual states to ignore homosexual marriages even if the couple married in a state that permits it. Currently, the section of DOMA dealing with the federal recognition of gay marriage is being considered by the U.S. Supreme Court. Meanwhile, with DOMA the law of the land, federal privileges such as Social Security survivors’ benefits, immigration and the filing of joint tax returns are not extended to married gays.
Because of DOMA, “judges do not have the authority to direct pension plans administrators to separate the pension [of divorcing gays]. There is no authority [to grant that] for same-sex couples since federal law does not recognize same-sex marriages,” Kuntz says.
Another difference between gay and heterosexual divorces is that it is the likelihood that spousal support will be awarded to a divorcing gay is severely diminished. “Since gay marriages are a relatively new thing legislatively, there are few long-term marriages yet.” That reduces the amount of maintenance a person could recover, she says. The duration of a marriage is generally considered an important factor when a determination of spousal support is made.
Married gays are mired in a “legal limbo,” says Joe Solmonese, a corporate consultant and gay activist in Washington, D.C., who married his partner in October 2010. If a gay couple seeking to marry lives in a state that permits same-sex married but moves to a state that does not allow it, where can they divorce if the relationship sours? That answer depends on where the marriage took place.
Two states – Vermont and California, as well as Washington, D.C. – have enacted laws resolving that dilemma. If a gay couple marries in one of those jurisdictions but lives in a state that does not recognize gay marriage (meaning gay divorce also does not exist), they are permitted to get divorced in the state in which they married. Each of those three jurisdictions waives their usual requirement that divorcing couples live in that state for a specified length of time prior to the utilization of its domestic relations court system.
The other nine states permitting same-sex unions have residency restrictions on divorcing couples.
The Semantics of Civil Union
Six states have adopted civil unions for both same-sex and heterosexual couples, according to the National Conference of State Legislatures. However, when recently approved gay marriage laws go into effect in Delaware and Rhode Island, that number will dwindle to four. Three more states have adopted broad domestic partnership legislation granting nearly all state-level spousal rights to unmarried couples, gay or straight.
Alan H. Boudreau is a solo practitioner in Illinois, a state permitting civil union. The Illinois Senate recently passed marriage equality legislation and Boudreau says he hopes the House will approve it soon, as well. Illinois Governor Pat Quinn is on record supporting gay marriage. In the Land of Lincoln, a civil union extends “all the rights, benefits and responsibilities of marriage. It’s supposed to be equivalent to marriage in all but the name. Courts are to construe broadly to be as inclusive as possible,” says Boudreau, whose practice includes family law matters.
Illinois’s civil union law also requires “some sort of ceremony” where vows are recited, although religious rites are not required, says Boudreau. And, just as with opposite-sex marriages, the state requires a 24-hour waiting period between the issuance of a license and the ceremony. Among the benefits of a civil union in Illinois is that the parties may receive benefits as if they were married. If civil unions did not exist, guidelines established by individual employers would control whether the unmarried partner could receive benefits.
Another law Illinois has on its books is its Marriage and Dissolution of Marriage Act. According to Boudreau, that legislation allows Illinois same-sex couples who married elsewhere to return to the state and have their relationship recognized as a civil union. Moreover, the couple “does not have to do anything for that to happen,” such as registering somewhere.
So, if it squawks like a duck and walks like a duck, why is there a move to have gay marriage legalized in Illinois when a civil union accomplishes the same thing? Boudreau offers two reasons. “For the LGBT community, it’s important to have a sense of equality. All relationships will be treated equally. When gay marriage is sanctioned by a state, there is a perception within the community” that all marriages are equal, he says. The second reason hinges on semantics. “When someone responds to questions about their relationship and has to answer they’re in a civil union, they are questioned about the relationship status. But, if they’re married, many of those obscurities are removed,” he says.
Down with DOMA
When asked what they would like to see changed about gay marriage laws in the United States, the consensus among those interviewed for this article was clear: outlaw DOMA. “DOMA needs to go! You can’t have a situation where some states recognize [gay] marriage or grant full faith and credit to marriages” while other states do not, Long Island, NY family law attorney Sari Friedman says. Calling DOMA “hugely frustrating,” CiCi Van Tine, who heads the Family Law Group at Mirick O’Connell, a full-service law firm in Boston, says gay married couples are not treating equitably under Federal law. She says it’s not fair that federal benefits are not afforded to all divorcing couples, no matter their sexual orientation.
Tami Kamin Meyer is an attorney and writer in Ohio.