(The author is a Reuters contributor. The opinions expressed
are his own.)
By Geoff Williams
July 5 Gay couples rejoiced last week when the
Supreme Court struck down the Defense of Marriage Act (DOMA) and
cleared the way for federal recognition of same sex-marriages.
They should push for divorce equality, too.
That's something Jason Dottley, a Los Angeles pop singer and
actor, would like to see. He filed for divorce in April 2012
from his husband, Del Shores, a film director and playwright.
Dottley and Shores married in 2008, a brief time of marriage
equality in California.
"People at the courthouse didn't know how to handle the
divorce," says Dottley, noting that extra paperwork aimed at
same-sex couples dragged the process out for a full year.
At least Dottley and Shores split in a state that had
recognized gay marriage. For couples who wed and then move to
one of the 37 states that don't recognize it, gay marriage can
become something of a trap.
IT'S ALL ABOUT GEOGRAPHY
Divorces, unless they go through appeals and work their way
up to a higher court, are always worked out in the state in
which a couple lives. So if a state doesn't recognize gay
marriage, a gay couple can't divorce there. At least one member
of the couple will generally need to move.
That has led to feelings of desperation on the part of
cash-strapped couples or those geographically tied because of
children, careers and homes.
"I have heard of couples who have filed for divorce by using
their first initials on the forms, so the court won't realize
they're a same-sex couple and the divorce will be granted, and
then when the court does realize it, they take it back, and
they're married again," says Carolyn Satenberg, a family law
attorney in New York City whose primary focus is on matrimonial
issues related to same-sex couples.
DOUBLE, TRIPLE THE COST
"If a couple has been married or together for a long period
of time, a gay divorce usually costs double what it does for a
heterosexual marriage," says Satenberg. "Having kids triples the
This is true even in states that recognize same-sex
marriage, because gay marriage is still a relatively new legal
concept. Many gay and lesbian couples have had long
relationships - sometimes afforded legal status as civil unions
- before they were permitted to marry. So deciding when two
partners' commitments to each other began isn't always easy.
A "civil union" in Vermont begun in 2001 is not the same as
one in Hawaii begun in 2013, observes Robert Stanley, a family
law attorney in Beverly Hills, California. If couples have moved
to other states, it gets even more complicated. Even within a
state, a couple who legally started a domestic partnership in
1999 in California might have fewer legal rights than a couple
that formed one in 2005, when more rights were spelled out.
Courts haven't reached consensus about when a gay couple's
legal bond begins, says Stanley. Should it begin when, denied
marriage, a couple hold a ceremony for friends and family and
declare themselves married, or when they finally register with
In a contentious case involving a lot of assets, there is
often more legal work involved in pushing a gay divorce through
PRENUPS AND POSTNUPS
For gay couples who have yet to walk down the aisle, or
married couples who simply want to protect themselves, attorneys
say the smartest thing is to plan for a possible divorce.
A pre- or post-nuptial agreement will help if you ultimately
split in a state that recognizes gay marriage, but there are no
guarantees it will get you anywhere in a state that doesn't.
"It may not be enforceable, but it's advisable," says Julia
Swain, a family law attorney in Philadelphia. She recommends the
document be crafted under the laws of the state the couple lives
in instead of the state where they marry.
Same-sex couples who want to divorce and are living in a
state that doesn't recognize gay marriage may be able to stay
put if they hire a savvy attorney. But it really comes down to
who wields the gavel. Last year, in Columbus, Ohio, one judge
granted two gay men a divorce, despite the state's not
recognizing same-sex marriage; days earlier, a different judge
in the same court refused to approve the divorce of a lesbian
couple that lacked legal representation.
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Editing by Linda Stern and Prudence Crowther)