IF you thought the fight over same-sex marriage has been tumultuous,
just wait for the era of same-sex divorce. With New York State’s new law
allowing same-sex marriage, not just for residents but for
out-of-staters as well, a bumper crop of weddings is sure to follow —
and, eventually and inevitably, a sizable number of divorces.
But Americans are a roving sort, and people who marry and move to places
hostile to their union could find, in disunion, a legal limbo. A couple
who marry in New York and seek a divorce in Texas could find themselves
fighting not just each other but also Texas’ attorney general, Greg
Abbott. He has tried to intervene in two same-sex divorces, arguing that
if the state does not recognize the marriage it won’t recognize the
divorce, either.
If blocked in Texas, the unhappy couple can’t head back to New York for a
quick split either. New York’s same-sex marriage law does not require
residency to wed, but the state does require residency of at least 90
days to obtain a divorce. A stay like that is out of the question for
most people.
“Where can you get a divorce?” asked Tobias Barrington Wolff, a
professor at the University of Pennsylvania Law School. “The answer
might be nowhere, perversely.”
Do a little reductio, and it’s not a long way to absurdum.
Andrew M. Koppelman, a professor at the Northwestern University School
of Law and the author of “Same Sex, Different States: When Same-Sex
Marriages Cross State Lines,” said that if Mr. Abbott and other
attorneys general were truly serious about not recognizing same-sex
marriages, they would allow obviously mischievous results. “You’re
saying that somebody who lives in Massachusetts can empty the
safe-deposit box, empty the bank account and go to Houston — and say,
‘Ha, ha, ha, you can’t come after me here, because Texas doesn’t
recognize your marriage’?” he asked.
Conceivably, he said, a woman in a same-sex marriage in New York could
abscond to the Lone Star State, where she might then marry a man, since
the previous marriage doesn’t exist there. She wouldn’t even have to
tell him that she had a wife in New York. “Has Texas legalized bigamy?”
he wondered.
Margaret M. Brady, a lawyer in New York specializing in family law for
same-sex couples, said that even those couples facing no extraordinary
obstacles to divorce would find it a very different experience from that
of heterosexual couples. Under New York law, the automatic division of
property covers only assets acquired after marriage, not “premarital
contributions” to things like real estate. Yet some of her clients were
together 15 years or more before marrying. “It will be interesting to
see if the courts will be willing to take into consideration those
premarital contributions made at a time that the couple could not avail
themselves of the privilege of marrying,” she said.
Same-sex divorce, of course, is not new. Massachusetts first allowed
same-sex marriage in 2004 (and Vermont allowed civil unions in 1999).
Some of the pioneer couples in such states have realized that connubial
bliss isn’t. But the addition of New York, which, with 19 million
people, is the third largest state by population, will add many new
cases and conundrums. “There have been only a handful of cases on the
topic, but that is sure to change,” said William C. Duncan, the director
of the Marriage Law Foundation, which provides legal resources for
those supporting traditional marriage.
People have gotten around barriers to divorce before. In more
puritanical days, many states prohibited divorce unless one spouse could
prove a transgression like abandonment, sexual escapades or cruelty.
Mini-industries grew up in states like Nevada, where establishing
residency took only a few weeks. Even just one spouse could break the
bond for both.
Over time, however, the Supreme Court whittled away at the power of
states like Nevada to put couples asunder, and the rise of no-fault
divorce made the trip unnecessary. The quickie Reno divorce faded away.
Today, denying divorce denies justice, said Allen A. Drexel, a family
law expert in New York with a large practice among same-sex couples.
“The right to obtain a legal divorce is one of the most important, if
least celebrated, rights of marriage,” he said. The process of
separation can bring out the worst in people, he said, and “the
incentives to game-play and to engage in forum-shopping to take
advantage of the inconsistent legal treatment exists.”
Ms. Brady said that divorce, whatever the sexual orientation involved,
is the state’s way of compelling fairness for the families of couples
who have fallen out of love. It seeks to protect the weaker, poorer
spouse, and the children as well. The state can require alimony, child
support and maintenance payments to ensure that any children live in
similar circumstances no matter which parent’s home they sleep in. She
said such arrangements, properly imposed, force divorcing couples, gay
or straight, “to find their better selves, and have them act
accordingly.”
Richard Socarides, who was an adviser to President Bill Clinton on gay
issues and is now president of Equality Matters, an offshoot of the
Media Matters press-monitoring group, said the present inconsistencies
in the law might eventually work to move the cause of same-sex marriage
forward as more and more people come out, marry and, yes, divorce.
“These people are my friends, my neighbors, my co-workers,” he said.
“It’s going to be pretty hard to discriminate against such a large group
of citizens. It can’t be sustained.”
And so, he said, “at some point, probably sooner than we think, people
will just start to say to themselves, ‘What’s all the fuss?’ ”
John Schwartz is the national legal correspondent for The New York Times.