Dissolving a SameSex Marriage

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possible effort to compromise. Fighting for every last dollar will only cost both of
you money and create more pain.
Real life rarely fits snugly into the legal rules for nonmarital dissolu­
tions, and because you don’t have to take your case to court, resolving the
dispute through mediation or binding arbitration is very often the safest,
sanest road to travel. Find out the legal rules in your jurisdiction, evaluate
what really is most important for you to fight over, and approach the
mediation and negotiation process with an understanding that compro­
mise is going to be necessary. Make sure you get your final agreement in
writing, and do whatever you can to avoid having to submit your lives to
the court’s jurisdiction.
Dissolving a Same-Sex Marriage
This section discusses what happens legally when a marriage or stateregistered domestic partnership or civil union breaks up. It’s not simple,
because all of the standard divorce laws apply to same-sex couples in the
marriage-equality and marriage-equivalent states.
Remember, even if you are living in one of those states that requires a
court dissolution for registered or married couples, you still can agree on
the substantive issues and simply file an “uncontested” divorce. This way,
even though you have to file the paperwork in court, you won’t have to go
through an ugly and expensive court trial.
Resource
If you’re headed for a court dissolution in one of the states that
recognizes legal same-sex relationships, you can use the same resources that
heterosexual married couples do—but make sure you also consult a lawyer
familiar with same-sex breakups. In the meantime, check out Nolo’s Essential
Guide to Divorce and Nolo’s Essential Guide to Child Custody and Support, both
by Emily Doskow, Divorce Without Court: A Guide to Mediation and Collaborative
Divorce, by Katherine E. Stoner, and A Judge’s Guide to Divorce, by Roderic Duncan
(all from Nolo). There are many good divorce-related websites, too—www.
divorceinfo.com and www.divorcenet.com are two of them.
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A Good Divorce—As Precious as a Good Marriage
Divorce is a painful process. When you married or registered you probably
felt you were taking part in a fabulously liberating opportunity—and now
you are forced to spend money on lawyers and possibly participate in a
grueling court drama. But you can avoid it. Whenever possible, try to keep
your disputes out of court. Even if it seems impossible, take a deep breath
and try again to work out a solution. Fighting about money and property
in court only decreases what’s left to divide and increases animosity and
conflict. Seeing a therapist, engaging in mediation or arbitration, or even
moving ten miles away can be more effective ways of handling serious
disputes than battling them out in court. A court fight is emotionally
draining, costly, and unpredictable, even if you’re lucky enough to appear
before a non-homophobic judge and can avoid being a “test case” for gay
divorce law!
Compromise does not mean capitulation. The joy of moving on, the fear
of public disclosure of your most private marital disputes, or the desire to
be rid of the past are not reasons to stop parenting your children or to give
up your share of the property you accumulated while married. You don’t
want to later spend months or years trying to obtain custody, support, or
property that you impulsively abandoned. Instead, try to stay the course and
work hard to reach fair agreements with your partner.
The rules governing divorce, child support, alimony, custody, and
property division are officially the same whether both parties are straight,
the couple is opposite-sex but one partner has come out as gay, or both
people are the same sex. But applying existing divorce rules to these
couples is not always going to be a simple process, and the first generation
of couples to seek divorces may encounter complications.
The most basic legal rules for married couples (and those in marriagelike relationships that bring with them the rights and duties of marriage)
can be summarized as follows:
• A spouse who wants to end a relationship must apply to the local
family court for a divorce decree. If the spouses agree on how to
chapter 10  | Going Separate Ways |  375
divide their property and debts and share parenting, the judge
will grant the request for a divorce and will approve the agreement
unless the terms are substantially unfair. If the spouses cannot agree
on distribution of their property, the court will divide the couple’s
property and debt in accordance with the state’s particular rules—
either 50-50 or in a way the court determines is equitable.
• A judge can order the higher earner in a marriage to pay alimony
(also called spousal support or maintenance) to the other partner—
sometimes just until the dependent partner can get a job, or in other
instances, for as long as the recipient is alive and unmarried.
• If you have children and can’t agree on custody or visitation, the
judge will decide on a custody arrangement, how visits by the
noncustodial parent will be arranged, who will pay child support,
and how much will be paid. The courts make these decisions based
upon what is in the best interest of the child. You will almost always
have to go to mediation with your ex-partner before you can go to
court about a custody dispute.
More detail about all of these rules, and how they may apply to samesex couples, is set out below. This chapter provides a rough outline of the
key issues, but each particular divorce can present new and complicated
legal problems. Even though it’s expensive, you may need to hire a
lawyer to help sort out these issues and others. Most lawyers won’t have
represented same-sex couples in legal divorces before, but it’s important
that you choose a lawyer who is comfortable with your family and with
working in an area of law that is not yet settled.
Getting a Divorce
In nearly all states, it’s possible to end a marriage based on either
separation or “no-fault” divorce. A separation-based divorce requires that
the spouses live apart for a period of time—from six months to a few
years—before divorcing (state rules vary on the length of time required).
In a no-fault divorce, a spouse simply alleges “an irretrievable breakdown
of the marriage,” “incompatibility,” or “irreconcilable differences.”
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States adopted separation-based and no-fault divorces in recognition
of the fact that a courtroom is not the place to review what happened
in a marriage, and that it is wasteful and degrading for spouses to allege
and prove petty wrongs, unfulfilled expectations, and betrayals. All that
is legally important is that the marriage no longer works and at least one
partner wants out. In a separation-based divorce, even if one spouse is
determined to stay married, that spouse can’t force it. The same is true in
a no-fault divorce. And so, who had the first affair really won’t matter at
all to the judge, however important it may seem to you!
Although every state now allows separation-based or no-fault divorce,
a few states still permit divorces based on traditional fault grounds as
well—grounds that include adultery, mental cruelty, and abandonment.
If you live in one of these states and either of you is so inclined, you or
your spouse could request a fault divorce—most likely asserting that the
other person is guilty of mental cruelty or has committed adultery with a
new lover. Some states don’t allow you to allege fault as the basis for the
divorce, but in many of those states it can be raised in a child custody or
alimony dispute and in some states it can affect property division as well.
(See below.) But our advice, in general, is to let go of this strategy, as it
will only cost everyone more money and more aggravation.
Dividing Your Property and Debts
If you and your spouse have significant assets, how a court will divide
them and allocate the debts incurred during your marriage depends
on where you live. California, Nevada, Oregon, and Washington are
all community property states that recognize same-sex marriages.
Community property means that spouses own most or all of their
property equally, and that the property is likely to be divided equally at
divorce. All other states follow a system called “equitable distribution.”
Under both systems, property acquired during marriage (except gifts and
inheritances) is generally divided “equitably,” which might or might not
mean the division is equal.
One of the key problems that will arise in many gay divorces is how to
deal with assets or debts accumulated before you registered or married.
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Many couples have been cohabiting for many years—years that generally
aren’t governed by marital rules. The legal rules for premarital assets
or debts when the relationship changes into a marriage or registration
are not at all simple, and if this is one of your issues, you probably will
need to consult with an attorney who is familiar with both marital and
nonmarital rules. Another point to keep in mind (as discussed more
fully below) is that so long as DOMA is in effect, you are not federally
recognized spouses, and so the tax protections bestowed on divorcing
straight couples most likely won’t apply to your divorce.
Regardless of your state’s laws, you and your spouse may agree to
whatever division of your property seems fair to both of you, settle your
divorce yourselves, and ask a court to approve your settlement in the
process of an uncontested divorce.
Where Are We Married? And Where Can We Get Divorced?
If you registered or married in a state other than the one you live in, will
other states honor your out-of-state marriage or legal union and allow you
to get a formal divorce? One of the biggest problems arising out of all the
recent legal changes is what happens to couples who live in one state, but
registered or married in another state or country?
As discussed in Chapter 1, all U.S. states are supposed to honor marriages
from other states (and countries), and should treat you just as if you’d
gotten married in the state where you’re living. But Defense of Marriage
(DOMA) laws and generalized homophobia are likely to get in the way.
Further, many of the specifics of divorce, such as allocating pension benefits
and tax burdens, are based on federal law. If the federal DOMA says those
laws don’t apply, it may be difficult to apply state laws that incorporate
these federal rules.
All of the states that allow same-sex marriage or offer a marriage
equivalent like domestic partnership or civil unions will recognize legal
same-sex relationships from each of the other states that do. In addition,
a few other states recognize same-sex marriages, at least for purposes of
divorce. However, some states, including Texas, have refused to allow same-
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Where Are We Married? And Where Can
We Get Divorced? (continued)
sex divorces to go forward there on the basis that the marriage itself is not
recognized, so no divorce can be granted.
People who married or registered in one place but live somewhere that
the relationship isn’t recognized are in a bind. If their home state won’t
allow the divorce, they may be required to establish residency in a state that
will—and residency requirements can be as long as a year. However, at least
two judges in New Jersey have waived the residency requirement for couples
who were registered New Jersey domestic partners but no longer lived there,
simply because the judges considered it unfair that the couple couldn’t
divorce elsewhere. However, these couples had resolved all of the issues in
their divorce, and the courts indicated that only an uncontested divorce
would be eligible for a waiver of the residency requirement—a couple with
disputes over custody or property would have to establish residency.
In some states, you can dissolve a registration from another state right in
your home town, but in other instances you may need to move to the state
of registration or another recognition state and qualify for residency there,
and then file your legal action there. And if you haven’t taken the trouble to
get a formal dissolution from your former partnership, your new partnership
may be bigamous and therefore completely invalid. If you are facing such
a situation, we urge you to consult with a local attorney who can help you
sort through the options.
Resource
Work on your settlement yourselves first. For help in dividing your
property fairly and without incurring substantial professional fees—lawyers,
accountants, appraisers, and the like—see Divorce & Money: How to Make
the Best Financial Decisions During Divorce, by Violet Woodhouse, with Dale
Fetherling (Nolo). Also take a look at Nolo’s Essential Guide to Divorce, by Emily
Doskow (Nolo).
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Alimony
Alimony is the money paid by one ex-spouse to the other for support
following a divorce. Some states call it “spousal support” or “maintenance.”
In quite a few divorces, no alimony is awarded because both partners
work. However, this doesn’t mean that alimony is dead. Where one
spouse earned the money while the other raised the children, alimony is
probably still appropriate—at least until the children enter school fulltime or the non–wage-earner develops skills necessary to enter (or reenter)
the work force.
In a few remaining states, a court can find you at fault in ending the
marriage and award you less than an equal share of the marital property
or order you to pay more alimony. Divorce laws generally give courts
discretion to consider “all factors,” and as a practical matter, fault issues
may influence judges’ decisions.
If alimony is granted, it usually lasts until a specified period of time
passes, the recipient dies, or the recipient remarries. Some states consider
cohabitation to be the same as remarriage for purposes of ending alimony
payments, and a growing number of states have applied these cohabiting
laws to same-sex relationships.
One thing that is certainly going to be new is having judges consider
alimony claims by gay and lesbian “wives” or “husbands.” Even though
the rules are supposed to be administered in a gender-neutral way, we
wonder how open traditional judges will be to such claims. Again,
remember that you may be the first such claimant who has appeared in
the judge’s courtroom, so don’t be surprised if your case generates some
confusion.
The New Tax Headaches for Same-Sex Couples
Along with all the other challenges gay and lesbian couples are now
facing, the uncertainties regarding the federal tax code may well be the
most significant. Here’s the problem: If you live in a state that recognizes
your union—either as a marriage, civil union, or domestic partnership—
and your relationship ends, the settlement you make with your partner
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may involve paying your ex money, either as a property settlement or
as alimony or spousal support. If you were heterosexual and married,
those financial transactions related to your divorce would be tax-free
events. But until DOMA is repealed, your relationship is not a federally
recognized marriage, so you aren’t eligible for the broad exemptions from
taxation that are bestowed on straight spouses who divorce. This means
the payments could be considered a gift from you to your ex, or could be
classified as income on your partner’s taxes. It’s not even clear that samesex couples can avoid taxes on child support, which is neither taxable
nor deductible in a heterosexual divorce, because the technical rule only
exempts payments to a former “spouse.”
We are absolutely sure that this is an unfair situation, but we are less
sure about what you can do about it. You certainly don’t consider the
payment to be a gift if you are being ordered to pay spousal support to an
unfaithful ex. And as much as your ex may believe she has “earned” the
payment, the idea of paying income tax won’t be a pleasant one, especially
where the earner has already paid tax on this same money.
It is going to take several years to sort out these questions, with possible
audits of taxpayers, appeals from IRS and tax court rulings, and likely
changes in court and government codes. In the meantime, we encourage
you to talk with a local tax attorney or accountant who is familiar with
the rules for same-sex couples in your particular state.
Cooperating in Your Divorce
Many divorcing couples make decisions about children, support, and
property in a spirit of common sense and compromise, and we encourage
you to follow this path. If the issues are complicated and you feel that
you need an attorney to represent you, try to find one who will not
engage in all-out warfare with your ex. In some areas, lawyers and clients
are engaging in a process called “collaborative practice,” in which all
parties agree that they will not take the divorce dispute to court, but
will negotiate a settlement together. (For more about mediation and
collaboration, see “Methods of Resolving Disputes,” above.)
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Resource
For more information about divorce mediation, see Divorce Without
Court: A Guide to Mediation and Collaborative Divorce, by Katherine E. Stoner
(Nolo), or A Guide to Divorce Mediation, by Gary Friedman (Workman Publishers).
Child Custody
Child custody is the issue that potentially can present the biggest problem
for a lesbian or gay person going through a divorce. The best advice we
can offer is to try as hard as you possibly can to work out a solution with
your spouse or partner. Don’t leave these intensely personal decisions up
to a judge. If either parent is contesting legal parentage, you most likely
will need the assistance of an experienced local attorney.
Transgender Parents and Child Custody
Transgender parents often have extra layers of legal complications to deal
with. In a case in Florida, for example, a female-to-male transsexual, Michael
Kantaras, married a woman and adopted his wife’s infant son. Michael
and his wife then had a child together through artificial insemination. At
the time they married, Michael’s wife knew that he was a transgender man.
After they divorced nine years later, however, she claimed that the marriage
was invalid, and that Michael was not entitled to custody of or visitation
with the children. The first court to review the case found that the marriage
was valid, and awarded primary custody of the two children to Michael. An
appeals court in 2004 reversed the lower court’s ruling that the marriage was
valid—holding that a person’s sex is immutably fixed at birth—but refused
to strip Michael of his parental rights, sending the case back to the trial court
to determine parental rights. In 2005, after television personality Dr. Phil got
involved and urged the parties to mediate, they reached a settlement under
which Michael retains all of his parental rights, and shares legal custody with
the children’s mother.
In Illinois, a court held that a marriage between a transgender man and
a woman was void because the man had not yet undergone sex change
surgery at the time of the marriage and thus was legally considered a
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Transgender Parents and Child Custody
woman. Because the marriage was void, the court reasoned, the man also was
not a legal parent of the child born to his wife during the relationship, and was
not entitled to custody. The court did rule that the man should have visitation
with the child, who was 11.
In a 2007 Washington State case, the Court of Appeals upheld a trial court’s
decision giving primary custody to Tracey Magnusen, the ex-wife of Robbie
Magnusen, who was planning to have male-to-female gender reassignment
surgery. The trial court’s decision was made despite the findings of a guardian
ad litem for the children, who conducted an extensive investigation and
concluded that Robbie should be the primary custodial parent (the report
noted that Robbie was the “more nurturing and engaged parent” and that
Tracey had always been a “secondary parent”). The judge felt that the impact
of Robbie’s transition on the children was “unknown,” and used that as the
basis of the custody decision. The only upside is that the decision is the
first to state explicitly that gender identity should not by itself be seen as a
disqualifying factor for determining custody.
In Kentucky, a court allowed a woman’s husband to complete a stepparent
adoption of her daughter, in the process terminating the rights of the exhusband, a male-to-female transsexual. The court held that the gender
reassignment surgery, alone, did not cause the termination, but that the
“entire series of events,” including the parent’s failure to inform the children
about changes in appearance before a visit, had caused serious emotional
harm that justified the termination of rights.
In a New York case, a transgender man won custody of his child even after
his marriage to the child’s mother was declared void. The court found that
the child was conceived by donor insemination during the relationship, had
bonded with the man as a parent, with the support of the mother, and that
the man was the only father that child had known. The mother had also filed
a birth certificate that named the man as the child’s father. The court stopped
short of finding the man a legal father, but did give him standing to seek
custody and visitation. (K.B. v. J.R., 887 N.Y.S.2d 516, New York 2009.)
Transgender parents will need the assistance of a knowledgeable attorney.
See Chapter 11 for resource information.
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Kinds of Custody
There are two types of child custody: physical and legal. Physical custody
is the right to have your child live with you. Legal custody is the right
to make important decisions about things such as the child’s education,
medical care, and activities.
Custody may be sole or joint. Joint legal custody means that parents
continue to make decisions together about important issues even after
the divorce. Courts order joint legal custody in most cases, regardless of
how much time the child spends with each parent. Joint physical custody
means that the parents share time with the child—it doesn’t necessarily
mean that time is split equally, only that both parents spend a significant
amount of time parenting. Joint physical custody isn’t for everyone, but
it works well when the parents get along relatively well and live relatively
close to each other.
Usually, a parent who doesn’t have primary physical custody will
be granted liberal parenting time. If incomes are unequal or if one
parent is shouldering most of the costs of taking care of the child, the
noncustodial parent will be ordered to pay child support. In most states,
the family law court keeps the authority to resolve future disputes about
custody or parenting time, and any orders or rulings can be revisited if
circumstances change.
The local family court judge has the power to make all decisions about
who will have legal or physical custody—and is required to consider the
“best interest of the child” in all disputes.
Tip
When you first separate, stay with your children if at all possible.
If you leave your family home without the kids, even for the most logical and
important reasons, you give away an advantage by allowing the other parent
to become the primary caretaker of the kids. Courts don’t like to disrupt the
status quo and often put a high value on keeping kids with whomever they’ve
been living with. If you have to get away for a period of time, try to first reach an
understanding with your spouse that when you return, the two of you will share
custody—and put your agreement in writing.
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Avoiding a Custody Battle
If you and your spouse agree on custody, the court will almost certainly
accept your arrangement with no questions asked. On the other hand, if
you can’t agree and you leave the question to the court, anything relating
to your life and behavior can be raised in court if it is relevant, and
sometimes even when it is not.
In most states, courts can and do order parents to attend mediation
sessions any time they can’t agree on custody or visitation. But even if a
court doesn’t order it, mediation is an excellent idea. Mediators work with
parents to help them come to a mutually agreeable solution. Mediators,
unlike judges, don’t impose decisions on parents.
Resource
Get more information. To learn more about child custody mediation
and negotiating parenting issues, see Building a Parenting Agreement That Works:
Putting Your Kids First When Your Marriage Doesn’t Last, by Mimi Lyster (Nolo).
Also see Divorce Without Court: A Guide to Mediation and Collaborative Divorce,
by Katherine E. Stoner (Nolo), which has useful worksheets and advice about
mediating custody issues.
If You End Up in Court
To decide a contested custody case, the judge will look at “the best
interest of the child,” sometimes using a report from the custody mediator
as a guide. Once the case gets to a judge, any issue that is related to a
child’s best interest can come up, and your spouse may try to raise all
kinds of things—your conviction for possession of hashish in college,
your religious preferences, your sloppy housekeeping, and practically
anything else that might garner an advantage.
Caution
Occasionally, the fact that you are living with a new lover can work
against you. Especially if you live in a conservative area, consider carefully before
moving in with a new partner while you are in a custody battle.
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It’s great to do your own legal work whenever possible, but a custody
battle is not the time. It’s important to work with someone who knows
custody laws and has the respect of the local judges and attorneys. See
Chapter 11 for advice on finding the right lawyer. Once you pick a
lawyer, work with that person to figure out exactly what you want, and
then to decide what compromises you’re willing to make. In court, you’ll
have to be prepared to persuade a judge why your “wants” are in your
children’s best interests.
Visitation (Parenting Time)
If one parent gets sole physical custody, the other parent generally gets
visitation rights. “Visitation” is the term that’s been used for many years,
but recently noncustodial parents have begun lobbying to replace it
with “parenting time,” a term that is in fact more accurate. Noncustodial
parents are not visitors with their children, but parents. We’ll use the terms
interchangeably here, with a preference for the newer turn of phrase.
Again, you and your ex can make an agreement about visitation
without fighting in court. But if you don’t, then a judge will decide this
issue too. In general, decisions about parenting time involve many of the
same issues that come up with a custody case. The significant difference is
that the court can deny parenting time only if it finds that the visitation
would actually be detrimental to the child.
Before denying (or greatly restricting) a parent’s time with the children,
the court must find extreme behavior—for example, child abuse,
violence, or substance abuse. There is no legal basis for one spouse to ask a
court to deny shared parenting to a reasonably responsible parent.
If spouses agree that one parent should have some visitation, the court
will probably say that parent should have “reasonable visitation rights”
and leave them to work out the details. If, however, they cannot agree,
a judge will spell out the parenting schedule, specifying the time, place,
and duration of the visits. A judge can impose very specific rules on
visitation. For example, a noncustodial parent may be required to give
the custodial parent 48 hours’ notice before coming to visit. Or a court
may prohibit the noncustodial parent from removing the child from the
county or the state or, in rare situations, from the child’s own home or
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the home of a third party. It’s common for courts to require that parents
with histories of drinking not use alcohol while with the children.
But can the court restrain a gay or lesbian parent from visiting with
children in the presence of a same-sex partner, or say that the child can’t
spend the night when the same-sex partner is also in the house? Some
courts have said yes, others no. Can a court prohibit a gay father with
AIDS from visiting with his children? In most cases, parenting time has
been permitted. (Because the children are not at risk of contracting AIDS
from their father, there’s no medical ground for a prohibition.) But some
judges prohibit visitation, supposedly to “protect” the children. If you
challenge a judge’s ruling in court, you will want an expert to testify on
your behalf. If the court rules against you, consider appealing—but don’t
violate the court order.
Once an order relating to parenting time is entered, it’s enforceable
just like any other court order. Parents with custody have been known to
refuse to comply with visitation orders to spite an ex-spouse. Whatever
the motive, it’s not in the best interests of the children, and it’s illegal.
A parent violating a court order can be held in contempt of court,
fined, and even jailed. And remember, custody cases don’t end until the
child reaches age 18. Until that time, the court can change custody or
the parenting schedule if the person seeking a change can show that
circumstances have changed.
Child Support
In every state, parents are required to support their children. All states
now have mathematical formulas to establish support based on each
parent’s income and how much time each spends with the kids. You can
certainly agree to a higher amount, but to go below the guideline you will
have to convince the judge that your child will be adequately supported
and that there are good reasons for the deviation.
Only legal parents are obligated to support children. If you have a new
partner, that person isn’t a parent. Your new lover is welcome to pay the
bills, but is not required to. However, if the new partner does contribute
to your expenses, a court may decide that you need less child support. Or,