Gay Divorce: From Marriage Equality to Divorce Equality

Getting divorced, as anyone who has been through it knows, is far more complicated and costly than getting married. And that is for straight folks. For gay couples, it is far less straight forward. That’s the subject of a New York magazine cover story on gay divorce, entitled, “From I Do”, to ” I’m Done.” After describing the break-up of one gay couple — Kevin Muir and Sam Ritchie, who married in 2004 in Massachusetts — the piece highlights the many legal issues involved.

From “I do” to “I’m done”, thought often fraught with conflict and animus, can be a clear and well-understood process for straight couples. When their legal marriage is over, they understand they will need a legal divorce. But for gay couples, the promise of marriage is still so new and incomplete that the idea of divorce courts, property settlements, spousal support and all the rest is not on the radar. Who would consider the process of undoing a contract that until very recently you were not allowed to enter into. This is not the focus of marriage-equality advocates, but the gay divorce boom is imminent. In part because nearly 50,000 of the approximately 640,000 gay couples in 2011 were married. Julie and Hillary Goodridge, the lead plaintiffs in the Massachusetts same-sex marriage case, divorced in 2009.

According to LGBT think tank, the Williams Institute, about one percent of same-sex marriages dissolve each year, versus two percent for different-sex couples. But many observers expect the gay divorce rate to increase since many of the first gay couples to marry were the most long-term and stable ones.

The conflict and complexity that hetero couples can engender in even what should be a relatively simple divorce is remarkable. But gay couples have so many added levels of complexity and therefore, potential for even greater conflict.

“Imagine you’re a same-sex couple married in Washington, D.C., and taking the Amtrak from there to Boston,” says Susan Sommer, director of constitutional litigation for Lambda Legal. “You’re married in D.C.; everything’s fine. Next stop Maryland, which until 2010 wouldn’t treat you as married but now would. You get to Delaware, which has a civil-union law, so it treats you not as married but as a civil-union couple. Then you get to Pennsylvania, which has not been recognizing these out-of-state marriages as anything at all, and not allowing divorces, so while there you are potentially a legal stranger to your spouse. That’s not a good part of your trip. New Jersey recognizes your marriage only as a civil union. Then, phew, you’re in New York and you’re married again; same in Connecticut. Then you get to Rhode Island: a civil-union state where the attorney general has said you are married and the government is treating you as married, but the courts have said we won’t divorce you. Finally, you reach Massachusetts, and you can breathe a sigh of relief: You’re married. And you can divorce. But it’s a very complicated legal ride.”

It would not surprise me if some divorce lawyers hope the Supreme Court does not issue a broad ruling favoring marriage equality in Hollingsworth v. Perry, the Prop 8 case, just from a business development point of view. Striking down the Defense of Marriage Act (DOMA) could have a similar, simplifying effect.

If the Court strikes down DOMA’s “one man, one woman” definition of marriage, some of the biggest complications for divorcing gay couples in some states will end. It would not be necessary to develop expensive workarounds that provide for equitable distribution of federal benefits like pensions and Social Security, which are taxed in gay divorces but not in straight ones. Simple changes in state laws will eventually allow gay couples to divorce wherever they please, without having to establish residency elsewhere or fight to apply “long arm” jurisdiction to a spouse elsewhere who won’t cooperate. And divorcing parties from nonrecognition states will not have to structure their marriages as business partnerships or joint ventures in order to divide marital property or force its sale.

Of course, the economic effects on divorce attorneys are not the only consideration, important rights are at stake – the ability for gay couples to end a marriage with legal clarity and finality.

Straight people no longer have a monopoly on marriage, so why should they have a monopoly on divorce? As the old adage t-shirt slogan goes, “Let gay people get married, so they can be miserable like the rest of us.”