Thursday, July 21, 2011

What About Gay Divorce?

Here's a great article written by Kilian Melloy called "The Flip Side of Marriage Equality: Parity in Divorce."

One refrain that GLBTs struggling for full-fledged equality have fallen back upon repeatedly is the clarification that gays do not seek any "special" rights, but rather wish to be treated with the very same respect, dignity, and suite of obligations and protections in the eyes of the law as heterosexuals collectively bestow upon themselves.

When it comes to family parity and marriage equality, then, it’s only logical that gays would also need to strive for equitable treatment before the law when their significant relationships come to an end. Just as heterosexual marriage entails heterosexual divorce in about half of all mixed-gender pairings, so too will gay marriage entail some degree of gay divorce.

But in a country where there are almost no federal rights or protections granted to GLBTs -- and where an anti-gay law, the Defense of Marriage Act (DOMA), actually denies federal recognition of same-sex relationships -- the resulting state-to-state patchwork of laws regarding marriage has left gays who marry in a pro-marriage jurisdiction and then relocate to an anti-equality state in a difficult position when it comes to dissolving legal unions that have not survived the test of time.

Like their heterosexual fellow citizens, gays and lesbians going through the end of a marriage need to be able to end legal ties with one another along with other aspects of the relationship in order to move forward.

But states that deny marriage equality to same-sex families do not wish to legitimize those relationships by granting them an official dissolution. To do so would mean acknowledging that those familial relationships had legal existence in the first place.

Though some studies indicate that the divorce rate among same-sex couples is significantly lower than that of heterosexuals, divorce between same-sex couples does happen... or should, at least, because the parties involved wish it. From time to time, attempts by divorcing same-sex couples that married in one state and then sought to dissolve the marriage somewhere else, only to be stymied, have reached the news.

The NPR article noted that getting a divorce in the state where a couple had married in the first place was not so easy once the couple has relocated: Residency requirements would force the couple back to the pro-marriage state for a full year before the divorce could be obtained.

Although DOMA exempts anti-parity states from recognizing the legal contract of civil marriage if it has been entered into by two persons of the same sex, the legal status of a married person in any state might still create legal problems in those other states.

"If Lunt wants to marry again one day, would that be polygamy?" NPR pondered. "Lunt and her ex didn’t share children or property -- but many other same-sex couples say without access to a family court, it becomes almost impossible to divvy up joint assets and decide custody issues," the article added.

"It’s strange. It puts me in emotional and legal limbo," Lunt told NPR.

Though states have the right to grant marriages, it is not clear that they necessarily have an untrammeled right to deny marriage. The U.S. Supreme Court struck down state laws against interracial marriages in 1967 with Loving v. Virginia. On the federal level, DOMA has been challenged on the grounds that it violates Constitutional guarantees; last summer, a federal judge in Massachusetts, Joseph Tauro, ruled that DOMA violates portions of the Fifth and Tenth Amendments.

NPR noted that even if a divorce is granted to a same-sex couple, the fact that DOMA prevents federal recognition of their family leaves many questions unanswered -- how alimony payments should be taxed, for instance. Moreover, the fact that marriage equality (where it exists) is still so new leaves courts without clear precedent for determining how property held in common should be divided. Typically, the length of the marriage plays a part in how such decisions are made, but for gays and lesbians -- who may have lived together for decades in a marriage-like relationship while denied marriage -- the question of when their relationship became a de facto marriage can be hazy at best.

Every couple who stands before a judge or a minister and takes a vow of "Till death do us part" hopes for a bond that lasts a lifetime. But for gays and lesbians who find that the relationship has soured, that eternal bond might well become all too literally unending and all too binding, even in places that won’t recognize its very existence.
Full story and source.

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