Friday, April 18, 2008

Benefits and Protections of Marriage #8 and #9: Divorce

This article is part of my series on legal and economic benefits and protections of marriage. Rather than limiting discussions surrounding marriage equality to abstract debates, it is helpful to point out the tangible ways that same-sex couples are harmed by an unequal legal system. So, here we go.

(Nothing herein is intended as legal advice or establishes an attorney-client relationship. Blah blah blah)

Because of the current haphazard schizophrenic state of our legal system with regard to marriage equality, a legal marriage between two people of the same sex in one state does not have, in other states, a sometimes necessary right: The right to not be married any longer.

Before I begin, I am going to break this article into two parts, as there are at least two benefits and protections associated with divorce.

Benefit #8. Division of Assets

Like their heterosexual counterparts, married same-sex couples who divorce must face the very non-abstract and cumbersome process of dividing their property, assets, bank accounts, and pets. Oh yeah, and if they have children they have custody issues to deal with. (Custody, however, is a topic for another day).

In short, the right to divorce, and access to marital dissolution laws, brings with it a legal scheme for property division. Marital dissolution laws tell couples "how" to divorce and, along with courts, they decide who gets what according to general rules and principles. In order to protect themselves and their assets, same-sex couples can enter into what are sometimes called "domestic partnership agreements." These agreements outline what happens to property and assets if a couple separates. But, this is an additional step that same-sex couples must take. See, unlike heterosexual married couples, same-sex couples who are married in every respect except for the label "marriage" do not have an automatic default property division scheme if they separate.

What this means is that like many of the other protections and benefits that same-sex couples can "mimic," same-sex couples must be aware that they have this right, then hire an attorney to prepare the agreement, or try to figure out how to do it themselves (which can be tricky and can lead to an unenforceable agreement). Heterosexual married couples, as we have seen many times, have the privilege of default legal rules governing and respecting their relationships. Same-sex couples do not. Sometimes, they can create their own documents. But really, as law-abiding tax-paying citizens shouldn't we be entitled to these automatic protections too? Shouldn't we get them "for free"? Because there are always going to be many who are left out, of course, because they cannot afford attorneys and do not know their rights.

That is a travesty in our "free" and "equal" country.

Benefit #9. The Right to Divorce

Currently in the US, only Massachusetts recognizes marriage between two people of the same sex. Accordingly, a same-sex married couple may divorce in Massachusetts. Where varying state laws on the issue of marriage equality become problematic is when a same-sex couple married in Massachusetts moves to another state.

Generally, couples who move to another state who were married in a different state are entitled to get divorced in their new state of residence provided they meet applicable state residency and "fault" requirements. Under the Full Faith and Credit Clause of the US Constitution, states are generally required to recognize marriages performed in other states. However, states have historically granted themselves the leeway to refuse to recognize such marriages when they deem certain marriages to conflict with the second state's "public policy." And thus, states can weasel out of recognizing a legal marriage between two people of the same sex that was performed in Massachusetts.

Since gay couples sometimes divorce, just as heterosexuals sometimes do, this unwillingness to recognize a legal same-sex marriage means that sometimes a state will not even recognize the marriage for purposes of granting a couple a divorce. Logically, this makes sense. Granting a divorce would mean that a state must first recognize that there is a relationship to dissolve. Practically, this unwillingness and legal schizophrenia places great burdens on same-sex couples. And really, it's just unfair. Tangibly, a same-sex couple does not have the same access to the legal system that a heterosexual couple does.

This burden and injustice is apparent in a the recent case where two women sought a divorce in Rhode Island, their state of residence, for their legal marriage performed in Massachusetts. They had been together for more than a decade and two years after their marriage, the state of Rhode Island was unwilling to grant them a divorce. Massachusetts would have granted them a divorce if one of the women were living there, but that was not a viable option for either of the women. Without going into too much legal analysis, the Rhode Island Supreme Court held that the word "marriage" in the state marital dissolution law does not empower the state Family Court to hear a divorce case between two people of the same sex who were legally married in another state.

What does this tangibly mean? Even though the couple has separated, they still have the legal status of marriage in Massachusetts with all of the benefits, protections, and obligations that that entails. As GLAD states, "even if a couple is unable to obtain a legal divorce, the marriage may still be recognized for other purposes and the couple may still be held responsible for the obligations of marriage, such as providing financial support and being held responsible for each other's debts."

Good times.

Although the question presented to the court was narrow, ("can a state court dissolve a gay marriage performed in another state?"), those opposed to marriage equality feared that an affirmative response would open the door to a legal recognition of marriage in Rhode Island. (It's all a slippery slope, my friend!). This, of course, is the great fear of the anti-equality crowd: Justices who recognize inequality for what it is, who uphold our nation's promises of equality, and who invalidate the tyranny of the bigoted majority.

As a final note, this sort of schizophrenia provides some interesting potential measures. Some, for instance, are proposing laws to legalize "gay divorce" in states that do not recognize gay marriage. The irony of legalizing gay divorce so others can "save marriage" is not to be missed. Save marriage, legalize divorce! Good plan.

Secondly, because of the stubbornness of some to recognize the reality that many married same-sex couples are just like many married heterosexual couples, same-sex couples are held to a higher standard than straight couples: Namely, when they say 'til death do we part, they really have to mean it.

In addition, you can almost taste the glee with which conservative groups talk about, and sometimes exaggerate and lie about, the fact that some married gay couples want to now get divorced. There is this mocking attitude of "We knew all along gay people would just get divorced, even though they wanted marriage so badly." In their blindness they act as though all gay couples who are married are just now realizing what a commitment marriage really entails and are now begging for divorce.

Yes, we know, conservative groups love and cherish marriage. Except, of course, when gay people marry. Then you revel in their personal tragedies and seek to deny them the right to dissolve their unions.

Traditional values are fun.

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