Gay Divorce Still Legal in California
By ROBERT MACKEY from http://thelede.blogs.nytimes.com/
Gay and lesbian couples who took advantage of California’s brief fling with gay marriage last year to tie the knot, but now can’t stand the sight of one another, will be relieved to hear that gay divorce remains an option.
Frederick Hertz, a lawyer in Oakland, Calif., who specializes in same-sex family law, told The Lede that since California’s Supreme Court ruled on Tuesday that same-sex marriages that took place in 2008, before voters approved a ban in November, will remain “both valid and recognized,” that means “all the rules of marriage apply, including divorce.” That said, the state’s new law explicitly outlawing same-sex-marriage does create something of a gray area for couples who live in California, but were married in another state, or nation, and now want to get a divorce. As Mr. Hertz explains, the problem for unhappily married same-sex couples living in a state that bans same-sex marriage, is that “getting a divorce requires a recognition of the marriage.”
In an article explaining how the legal patchwork of state laws makes it nearly impossible for some same-sex couples to get divorced, the Los Angeles Times reported that a lesbian couple from Rhode Island who got married in Massachusetts were later denied a divorce in their home state, since the courts there can not recognize their marriage.
The L.A. Times noted that some couples have apparently been driven to trickery in an effort to get divorced in states that won’t let them get married:
In Oklahoma, a judge unwittingly granted a divorce to two gay women who had married in Canada. The women had filed using just their first initials and last names. On discovering that both members of the couple were women, the judge revoked the divorce, on grounds that they had never been legally married.
In a post last month for the Daily Beast, Tim Murphy wrote that same-sex divorce is still relatively rare, but campaigners in favor of same-sex marriage want the right to untie the knot as well:
A recent UCLA study of same-sex couples in states that offer civil unions or legal domestic partnerships showed that these couples broke their legal bonds at about the same rate as straight couples: 2 percent per year. But because it’s only been a few years that gays have had legal unions at all, this amounts to relatively few dissolutions. Also, because most gay couples who’ve married thus far had already been together for many years, the gay divorce rate is still low, says Evan Wolfson, founder of the national gay-nups lobby Freedom to Marry. “I expect that, over time, gay people will probably have the same rate of [marriage] failure as non-gay people,” says Wolfson. “And that’s part of the point. People should be treated equally.”
Jo Ann Citron, a divorce lawyer in Boston, told the L.A. Times that, at least in terms of the law, “the single most important benefit of marriage is divorce.” As. Ms. Citron noted divorce is “a predictable process by which property is divided, debt is apportioned and custodial arrangements are made for children.”
Frederick Hertz, who has a well-timed book on the legal intricacies of same-sex marriage and other kinds of legal partnership coming out soon, says that couples who agree on the terms of their divorce can navigate the legal system in California fairly easily, even if they were married elsewhere — by also applying for a domestic partnership and then dissolving that. The problem, he says, is that in cases where the partners disagree over “parentage, money or property,” one person may be able to “take advantage of the situation” and use the legal confusion to deprive the other person of rights they would have if the partners were not the same sex.
When the history of same-sex marriage and same-sex divorce is written, it appears certain that one Massachusetts couple will feature prominently in both narratives. Hillary Smith Goodridge and Julie Wendrich Goodridge, who blazed a path to the altar, suing for the right to a same-sex marriage in Massachusetts in 2004, and then getting married that same year, are also blazing a path away from it. The Goodridges separated in 2006 and filed for divorce in February. Luckily for them, they live in a state that recognizes same-sex marriage, which will make the split legally, if not emotionally, painless.