The Realities of Same-Sex Divorce
On March 26 and 27, the Supreme Court heard oral argument in United States v. Windsor — the case which addresses the constitutionality of Defense of Marriage Act. The question is whether Section 3 of the Act, which defines the term “marriage” as “a legal union between one man and one woman as husband and wife,” deprives same–sex couples who are lawfully married under the laws of their states (such as New York) of equal protection, as guaranteed by the Fifth Amendment.
In 2007, Edith Windsor, a New Yorker, married her same–sex partner of over 40 years, Thea Spyer, in Canada. Dr. Spyer died two years after the marriage and left her entire estate to her wife — along with a hefty federal estate tax bill of $363,000 — a tax that Ms. Windsor would have avoided had she been married to a man.
And then there are problems for gay people on the other end of the marriage spectrum. New York Magazine recently published an article that addresses same-sex couples who are unprepared for the legalities involved in divorce.
LASIS further develops the consequences of both the marriage and divorce issues that lie ahead for same sex–couples.
Consider this: Boy from Alabama meets Boy from Florida (two states whose constitutions ban same–sex marriage) while vacationing in the Big Apple. The two fall madly in love and decide to get married right then and there. Is this even possible in light of the fact that both of them live out–of–state and are merely passing through New York? Yes! While New York may have been the sixth state to approve gay marriage, it was the first not to include any residency requirements for marriage. This means that any same–sex couple may travel to New York State and enter into a legally binding marriage. But this boy meets boy story isn’t over just quite yet…
After the vacation is over, boy and boy head back to their respective states, pack up all of their belongings and head for Texas (another state whose constitution bans same–sex marriage) to start their new life together. All is well during the honeymoon phase, but before long the boys realize that they rushed into their marriage, made a terrible mistake, and all things being equal, want a divorce. They rush down to the courthouse only to find that the doors are closed… Texas doesn’t recognize same–sex marriages and will not grant them a divorce.
The couple then hurries to the airport and hops on the next flight to New York.
Surely the state that married them will divorce them, right?
Even though New York does not have any residency requirements for marriage, it, like most states, has a residency requirement for a divorce. New York Domestic Relations Law §230 would require one of the boys to have resided in the state for a continuous period of one year prior to filing for divorce.
The couple is essentially trapped. They are stuck in a marriage that neither wants to be in. In the words of Susan Sommer, director of constitutional litigation for Lambda Legal, the situation “gives wedlock a whole new meaning.”
Unable to obtain a divorce, the couple decides to just “forget” about the marriage and go their separate ways. One stays in Texas and the other moves out to Vermont (a state, like New York, which recognizes same–sex couples).
The boy who moves to Vermont longs for companionship and soon finds a special someone on Grindr. The two fall in love, move in together, and get married in Vermont. Happy ending, right? Wrong. Not only is the Vermont marriage void due to the existing New York marriage, but boy is now possibly facing criminal prosecution and prison time pursuant to Vermont Statutes Annotated §206 (bigamy). Meanwhile, our boy down in the Lone Star state finds himself a new soul mate on Tinder. He too falls in love and moves in with his boyfriend.
Uh-oh, right? Nope — because Texas doesn’t recognize same–sex marriages, Texas Penal Code §25.01 (bigamy) is inapplicable. He’s safe.
Or consider the possibility that our boy in Vermont gets into a terrible car accident, is on his deathbed, and is unable to make end–of–life decisions. His “ex” in Texas, the “spouse” of the injured (remember we’re in Vermont, a state which recognizes same–sex couples), is legally likely to be the one who has the power to decide whether or not to “pull the plug.” In the eyes of Vermont law, after all, they are still married. Who better than your bitter, out–of–state “ex” whom you haven’t spoken to in years to make this decision?
Lastly, while on the topic, consider the ramifications associated with the distribution of property at death. Worst case scenario is that neither of the boys has a will or has had any children. In that situation his estate goes to his “ex” whom he hasn’t spoken to in years.
Best case scenario is not much better than that: each boy has devised a will that disinherits his spouse. Despite these wills expressing the clear intentions of the deceased, because there’s been no legal divorce, the living boy is likely entitled to spousal election — a percentage of the decedent’s estate. In New York, for example, EPTL §5-1.1 states that the elective share is the greater of $50,000 or one third of the net estate.
If the Supremes strike down DOMA’s definition of marriage, these issues may be resolved. But even, even if the Federal definition of marriage remains as is, LASIS believes that there is still hope for same–sex couples seeking divorce.
A no–fault divorce permits a marriage to dissolve without the demonstration of a wrongdoing by either party. While many argue that this provides an avenue for a “quickie divorce,” it was a much–needed remedy to a nationwide problem. Prior to no–fault, couples had to prove that a ground existed in order to receive a divorce. Grounds included: cruel and inhumane treatment, abandonment, imprisonment, and adultery. As you can imagine, many, if not most couples seeking divorce were unable to satisfy any of these grounds as falling out–of–love or simply growing tired of your spouse was insufficient. These folks, similar to current day same–sex couples, were unable to obtain a divorce and were trapped in their marriages.
In response, California, in 1970, introduced the Family Law Act of 1970 and pioneered the theme of “irreconcilable differences” or a “no–fault divorce.” Soon thereafter, states across the nation began hopping on the no–fault bandwagon and in 2010 New York became the 50th state to adopt the no–fault ground for divorce. Heterosexual couples across the nation are no longer burdened by rigid divorce requirements and are free to separate.
While it did take 30 years for the nation as a whole to provide an avenue of divorce for these otherwise blocked heterosexual couples, it serves as a faint breath of fresh air that should the language of DOMA remain, change is still possible. What that change could include is relaxed residency requirements for divorce, or for divorce purposes only, quasi–recognition of same–sex marriages by states which do not otherwise recognize same–sex marriages.