January 5, 2013

Same-sex divorce raises new legal issues

By Eric Russell erussell@pressherald.com
Staff Writer

Same-sex marriage is so new in Maine that gay couples getting married here are almost certainly not considering the possibility that someday, they might want to untie that knot.

In theory, the divorce process for same-sex couples should be no different than it is for heterosexual couples.

But in practice, same-sex marriage is still new legal territory, complicated by two factors: The federal Defense of Marriage Act still prohibits recognition of same-sex marriages at the federal level, and most states still do not allow or recognize same-sex marriages.

That means for the handful of states that have legalized gay marriage, confusion reigns over questions about how to dissolve those marriage, how assets should be distributed and, in some cases, over child custody issues.

"In most cases, when a state passes a law legalizing same-sex marriage, the language is written by supporters and they are not thinking about divorce when it's written," said Gabriel Cheong, an attorney with Boston-based Infinity Law Group who has represented a number of same-sex clients in divorce proceedings in Massachusetts. "But not everything is the same."

Maine joined eight other states and Washington, D.C., when it legalized gay marriage with the passage of a citizens initiative in November. The law went into effect Dec. 29, and dozens of couples got married right away, while dozens more obtained licenses to marry within the next 90 days, before the license expires. Many more couples -- although the exact number is not known -- had their marriages automatically recognized Dec. 29 if they had already exchanged vows in another state where same-sex marriage is legal.

"Questions around divorce have not been plentiful lately," said Betsy Smith, executive director of EqualityMaine. "There are so many couples that have been together so long, want the protections and security of marriage, so those are the questions we're getting."

But just as same-sex marriage in Maine has prompted a number of legal questions, Cheong said same-sex divorce is almost certain to do the same down the road.

The biggest complication is the federal Defense of Marriage Act, which brings a host of financial considerations into play. In nearly all cases, divorce-related financial transactions are tax-free for heterosexual couples, but not for same-sex couples. For instance, a same-sex partner could not transfer money without tax penalty the same way someone who is part of a heterosexual married couple could. That money would be taxed.

Bruce Bell is the legal infoline manager for Gay & Lesbian Advocates & Defenders, a Boston-based legal rights group. He said that asset questions come up often.

"People don't realize that the federal government allows (heterosexual) spouses to transfer assets without consequence," Bell said.

By law, marital property is to be divided equitably, but not necessarily evenly, in divorce. That's nearly impossible to do for same-sex couples, said Cheong. If one partner has a military pension or Social Security benefits or any other benefits from a federal job, the other partner would not have any legal right to a portion of that money. Cheong said attorneys handling divorces of same-sex couples often have to look for other ways to divide a couple's assets.

Alice Neal, an attorney with West End Legal in Portland who practices family law, said Maine likely will look to the examples set by other states like Massachusetts to see how same-sex divorces are being handled, but there will still be some trial and error.

"I don't think it should be any different, but there are going to be questions," she said.

Among those could be defining the length of a marriage. For instance, a couple who has been married in another state for five years saw their marriage legally recognized in Maine on Dec. 29. If, three years from now, that couple wants to divorce, how long would they be considered to have been married? Three years or eight?

The answer matters, Neal said, because of how spousal benefits are calculated. There are no concrete guidelines regarding spousal support in Maine, but the law does establish the presumption that spousal support will not be considered for any marriage lasting fewer than 10 years.

But, as Bell pointed out, there are likely many couples who have been together for far longer and who would argue that they would have been married for much of that time if the law had allowed it.

Prior to the passage of Maine's same-sex marriage law, Maine couples who were married legally in another state could not get divorced in Maine because their marriage was not recognized. Neal said that phenomenon has come up often in her practice and has been well covered in other states, too.

One Maryland couple, Jessica Port and Virginia Cowan, endured a lengthy court battle over the dissolution of their marriage. They were married in California in 2008, when same-sex marriage was briefly legal there. But when they decided to divorce, they faced a problem: Maryland didn't recognize their marriage in the first place, so they could not legally get divorced there. Some lawyers have called the phenomenon being "wed-locked."

"Divorce depends on where you live, not where you got married," said Cheong.

Being "wed-locked" may not be a problem for Maine residents anymore, but now the inverse is true: If a same-sex couple gets married in Maine and then moves to another state that does not allow or recognize same-sex marriage, they likely would have to return to Maine to obtain their divorce or to another state that recognizes same-sex marriage. In some cases, they would have to reestablish residency before a court would grant the divorce.

Child custody could also be a problem for divorcing same-sex couples. Although married parents have inherent rights when it comes to their children, many experts recommend that same-sex couples still officially adopt any children to eliminate any federal questions tied to DOMA. Additionally, child support normally is not taxed or deductible for heterosexual couples but no such guarantee exists for same-sex couples.

Family law attorneys said the U.S. Supreme Court is likely to resolve the Defense of Marriage Act with a decision that could come this summer, which may provide clarity on some of the issues. Until same-sex marriage is permitted in every state, though, they still expect some disparity.

"Couples should educate themselves as much as possible," Neal said.

Staff Writer Eric Russell can be contacted at 791-6344 or at:

erussell@pressherald.com

Twitter: @PPHEricRussell

 

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