(REUTERS) - 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.
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.
“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 cost.”
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 the state?
In a contentious case involving a lot of assets, there is often more legal work involved in pushing a gay divorce through the courts.
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.
(The author is a Reuters contributor. The opinions expressed are his own.)
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