What The End of DOMA Means for Same Sex Divorce

same sex divorce

Now That There Is Same Sex Marriage, The Next Thought Logically Turns to Same Sex Divorce

Wednesday marked an undeniably critical juncture in American history when 1996’s Defense of Marriage Act, and the denial of federal benefits to same sex couples under same, was declared unconstitutional. For many of us, the right to marry is something we take for granted; garnering less consideration than choosing whether or not to go for that extra shot of espresso in our morning macchiato. In fact, younger generations have rebelled against the idea of ‘til death do us part’; either choosing to simply shack up with their partners, à la Brad and Angelina, or acquiescing to the old ball and chain knowing the D-train to Splitsville is always an option if things ever get a little too real.

Even if you have taken an oath to live your life as a perpetual bachelor, it’s nice to know that if the day should ever come when you glance at your live-in companion over breakfast; the sunlight hitting her face in a way that makes your heart stop at the thought of ever losing her, you have the ability and right to put a ring on it and make it official.

Although finally being able to enjoy the validity of your union is no doubt important, sharing a life with your partner while being denied the rights and privileges afforded to married couples is the match in the powder barrel that blew DOMA apart, and rightfully so. Among the many advantages the espoused receive are: exemptions from estate taxes (the crux of the DOMA challenge), social security benefits, the right to file joint tax returns and the ability to sponsor a spouse for an immigration visa (huge). Given my capacity as a divorce attorney, I have a proclivity to naturally gravitate towards advantages such as the tax exemption afforded to former spouses transferring assets and the tax-deductible nature of alimony payments.

Of course, the topic of same sex divorce is fascinating in and of itself. The inner struggle that must accompany the decision to sever a bond you had previously been forbidden from forming seems incomprehensible. This is especially true when the idea of marriage is so shiny and new that the thrill of being able to walk down the aisle overshadows any intimation of a possible divorce. Although same sex marriage is still in its nascence, making it impossible to procure accurate statistics of same sex divorce; it can be assumed that Jim & John have the same chance of enjoying wedded bliss as Candi & Ron … and, unfortunately that’s not a very encouraging outlook.

Whether you choose to admit it or not, marriage changes a relationship. Being legally bound to someone, financially and otherwise, can take its toll. And you best believe divorce is a lot more complicated and painful then divvying up your Madonna records, grabbing your vintage Judy Garland photo off the living room wall and smugly laughing to yourself as you walk out the door knowing by the time your partner finds out you gave his favorite Lady Gaga boots to the homeless guy that hangs around outside your apartment, you will be long gone. Compare this to years of protracted litigation in divorce court and this kind of clean break sounds pretty freakin good.

Same Sex Divorce Rates

divorcePerhaps you subscribe to the popular belief that same sex couples will have a higher tolerance to the darker side of matrimony. The plaintiffs in Goodridge v. Department of Public Health, the case that led to the landmark decision legalizing gay marriage in Massachusetts, found themselves in divorce court three years later. An anomaly, you say? One of the first same-sex couples to wed in California, Wesley Nyberg and Thomas Adkins, who had spent SEVENTEEN YEARS together before taking the plunge, separated just thirteen days after exchanging vows. And you think your girlfriend is pressuring you to get married and salvage your relationship after six months of living together?! Sheesh.

Like most everything in life, divorce is indeed what you make of it. For many, it can be a very cathartic and empowering experience. Divorce can provide closure and, again, the tax benefits can keep a parting couple from forking over serious dough to Uncle Sam. Unfortunately, even with the Supreme Court’s decision overturning DOMA, serious challenges still exist for many same-sex couples on the road to singledom. Having left the decision of whether or not they choose to recognize same-sex unions means that same-sex couples living in a state that does not recognize gay marriage are forced to seek dissolution in a state that does. Further complicating matters is the residency requirement contained in the majority of states’ statutes in which at least one party has to establish residency for a requisite statutory period in order to obtain a divorce.

The controversy surrounding accessibility of divorce for same-sex couples was brought to light by a Florida couple who had been married in Ontario; only to return four years later to seek a divorce. Anyone who has been faced with the prospect of divorce knows that upon coming to the realization that it’s time to throw up deuces to your once intended soul mate, the ball and chain connecting you can’t be severed quickly enough. As the parties’ marriage in the case at hand was deemed invalid in Florida, they high tailed it across the border to seek a divorce from the court that had originally pronounced them wife and wife. Much to the ladies’ chagrin, they were told that non-Canucks were only able to undo the bonds of matrimony if they had been living in Canada for at least a year.[1] And who really wants to do that?! Kidding… kind of.

While the residency conundrum presents another unforeseen challenge same-sex couples are not likely to consider when planning their long anticipated nuptials; it pales in comparison to the challenges that can arise when children are thrown in to the mix. In states, such as Florida, that don’t recognize same-sex marriage and do not recognize a non-biological parent who has provided financial and emotional support to a child to be in loco parentis (in the place of a parent); a party bidding adieu to their spouse may be SOL when it comes to seeking custody of the kiddos. Due to these issues surrounding jurisdiction and custody coalesced with the scenario of parties spending decades together before taking advantage of their newfound right to join the rest of us in our march to the altar; same-sex couples would be wise to take a page from their heterosexual counterparts and recognize the staggering importance of attaining a prenuptial agreement before reciting their vows.

With the Supreme Court’s dismissal of the appeal to California’s Proposition 8, essentially clearing the way for same-sex marriage to resume there, 37% of America’s same-sex couples now reside in states that allow gay marriage. While this is surely a cause for celebration, the fight is far from over. The Williams Institute at UCLA estimates that there still remain 5.5 million LGBT Americans (and 800,000 same-sex couples) who reside in states where the right to marry, and thereby the right to divorce, is not available to them. And despite the monumental step towards equality witnessed this week, it is apparent that many states (including Florida) are not ready or willing to jump on the same-sex marriage bandwagon. When asked for his comment on the Supreme Court’s ruling overturning DOMA, Senator Marco Rubio replied, “The sweeping language of today’s majority opinion is more troubling than the ruling itself as it points to further interference by the Court in the years to come.”

divorceRemarks like those made by Senator Rubio, and mirrored by many of his conservative counterparts, triggered me to think of words spoken by Dr. Martin Luther King, Jr., “Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred.” It is my hope that we can look back in disbelief at the divide between the rights allowed to gay and straight Americans that exists today. We must take the Court’s decision as a symbol that it is finally time for us to rid ourselves of the type of ignorance and hatred that only serves to separate us and march forward until liberty and justice is truly afforded to all; regardless of skin color, religion or sexual orientation. In the wise words of Dr. King, “if America is to be a great nation this must become true.”


[1] After spending 15 months awaiting approval from Parliament, a bill closing this loophole was recently passed and is currently awaiting royal approval; how the rest of the world reacts to same sex divorce is still undiscovered

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