The Flip Side to 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.

The question has been roiling just beneath the surface for almost as long as marriage equality in America has existed. Seven years ago, Massachusetts granted the first legal same-sex unions. It wasn't long before some of those who tied the knot found they had been too hasty in their trip to the altar -- and sought to undo the bonds of matrimony.

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.

But with the number of gay and lesbian couples living in pro-marriage states set to double come July 24 -- the day New York's new marriage equality law takes effect -- the issue is in the spotlight once again. National Public Radio reported on same-sex divorce in a July 20 article.

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. NPR related the case of Lisa Lunt, who married in Massachusetts, then moved to Rhode Island (where a push for marriage equality was recently scrapped and lawmakers instead passed a civil unions bill that displeased both pro- and anti-family parity advocates). When Lent and her wife determined that their marriage was over, they were denied the legal and psychological relief of a divorce.

"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.

Legal and financial considerations aside, there's still the psychological toll of not being able to untie bonds that are no longer cherished.

"It's very much a gamble. I'm at the whim of a judge, but it is the best shot I have, and it would make such a difference to have that peace of mind," said a woman identified only as "Amy," who also married her wife in Massachusetts, then moved to Connecticut, only for her marriage to collapse. Now, "Amy" is looking for a quiet divorce that might slip through the system unnoticed and not enmesh her and her former partner in the sort of high-profile legal nightmare that engulfed Angelique Naylor and Sabina Daly.

Naylor and Daly were living in Massachusetts when they wed. After the couple relocated to Texas -- where marriage equality is denied same-sex families -- they decided to split up. Seeking to dissolve their legal ties, the women ended up in a legal labyrinth.

Though Judge Scott Jenkins granted their divorce in 2010, Texas Attorney General Greg Abbott stepped in later that year, seeking to nullify the divorce on the grounds that granting the divorce would, in effect, be granting the marriage retroactively. The case went to the state's 3rd Court of Appeals, with James Blacklock representing the AG's office.

Angelique Naylor's lawyer, Jody Scheske, rebuffed the argument that divorce is denied along with marriage under state law, noting that the law in question only addresses marriage and its benefits, remaining silent on the issue of divorce. "I don't think anybody who has been through a divorce thinks a divorce is some benefit of marriage," quipped the attorney.

But Blacklock purported to see a gay agenda at work in the women's legal attempt to extricate themselves from their relationship. "It is a desire of same-sex couples to have their marriages recognized here," Blacklock claimed, that was behind the divorce proceedings.

The two women were not the first to come face to face with the difficulties of divorce, or rather lack of divorce, Texas-style. One unnamed Texas couple, two men who married in Massachusetts but desired a severing of that legal bond in their home state, also set about pursuing a divorce, to no avail.

Peter Schulte, who represented one of the unidentified men, argued, "They want to get divorced just like a straight couple." Schulte said that although his client could simply move back to Massachusetts long enough to qualify as a resident and then pursue the divorce, the fact that he would need to do so, rather than being able to stay put and file for divorce as a heterosexual man could do, meant that his client was being treated differently under the law.

One high profile case involving a divorce and custody dispute between two women, Lisa Miller and Janet Jenkins, led to a complex series of legal entanglements, including verdicts by the supreme courts of both Virginia and Vermont, complicated child custody decisions, and an appeal from Miller's lawyers after Miller herself disappeared along with the couple's daughter in what the National Center for Missing and Exploited Children listed as a "family abduction." A minister was later arrested and charged with aiding Miller in her unlawful removal of the couple's daughter from the country.

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.