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(p. 383) Emerging Legal Issues in Same-Sex Divorces: A Lawyer’s View of the Unanticipated Effects of Heteronormative Marital Law 

(p. 383) Emerging Legal Issues in Same-Sex Divorces: A Lawyer’s View of the Unanticipated Effects of Heteronormative Marital Law
Chapter:
(p. 383) Emerging Legal Issues in Same-Sex Divorces: A Lawyer’s View of the Unanticipated Effects of Heteronormative Marital Law
Author(s):

Frederick Hertz

DOI:
10.1093/med-psych/9780190635176.003.0021
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Subscriber: null; date: 16 January 2019

Introduction

The marriage equality victories of the past 15 years have brought more than a million partners of same-sex couples into preexisting state-specific legal marriage systems—without any change to the core doctrines of the family law frameworks of each jurisdiction. Perhaps to the surprise of many married same-sex couples, there is no such thing as “gay marriage”; rather, in every statutory detail it is “straight” marital law that is now being applied to same-sex couples, both during their marriages and in the event of a dissolution. And while marriage equality is rightly celebrated as a civil rights victory for our community, it also has resulted in a host of unanticipated challenges for many same-sex couples dealing with the legal aspects of a break-up of their marriages, registered partnerships, or civil unions.

This chapter describes some of the most frequently recurring challenges from the perspective of the divorcing same-sex couples. The material presented is based on more than a decade of observations in my capacity as a California gay family law attorney and mediator who specializes in resolving the family law and dissolution issues faced by same-sex couples. Not surprisingly, the majority of my clients are same-sex couples (both gay and lesbian) with significant assets in dispute at the time of a dissolution for whom specialized legal assistance is required. Thus, they tend to be middle or upper-middle class and for the most part white. However, this article is also based on communications with public-interest lawyers and lawyers who serve a more diverse sector of the LGBT population.

(p. 384) Unique Dynamics in Same-Sex Couple Dissolutions: Case Examples

Consider, as illustrative examples of these challenges, the following true-to-life stories (with the names and some of the details modified to protect the privacy of the clients):

Case #1: Sharon and Valerie had already lived together as a committed couple for 3 years when California’s domestic partnership registration became marriage-equivalent in 2005, allowing registered couples to obtain state tax benefits and employer-granted benefits. Sharon was unemployed at the time, and Valerie worked for a company that provided excellent partner benefits, so they registered. Eight years later they broke up, and because their registration was deemed equivalent to a marriage, under California law they were subject to all the Family Code rules—including the division of community property and spousal support obligations. Because Sharon had not been able (or perhaps was unwilling) to obtain a decent-paying job and thus was still the low earner, Valerie was on the hook for 4 years of spousal support. Valerie felt this was extremely unfair, especially because Sharon had an Ivy League education and a professional degree yet refused to take jobs she considered “beneath her,” while Valerie came from an impoverished background and had worked consistently for more than 20 years. Valerie did not feel that the spousal support obligations should apply to her, because Sharon had never helped foster her career, and, in her eyes, Sharon had been arrogant and had become unreasonably dependent on Valerie. Valerie certainly did not view herself as a “husband” who should have any post-divorce obligations to her lesbian “wife.” Sharon, by contrast, felt that she had rightly relied on Valerie’s earning potential in making her decisions and that Valerie had benefited from Sharon’s emotional support—and so Sharon’s expectation of financial support was justified.

Case #2: Ron and Arthur were a couple for more than 20 years, but they only married (for purely practical reasons involving sharing retirement benefits while married) after federal marital benefits were extended to same-sex married couples in 2013, following the Supreme Court’s decision in United States v. Windsor. Their relationship unraveled within 2 years, triggered by Arthur’s downward trajectory into drug use, partying, and recreational sex. Over the years, Ron had accumulated a hefty retirement pension, while Arthur had spent nearly everything he earned. According to the marital laws of their state, this was only a 2-year marriage. So Ron’s pension was pretty much off limits to Arthur, who also was not entitled to very much in alimony. While Ron might have been willing to share his pension if they had stayed together, he had no inclination to do so given Arthur’s perceived misconduct, nor was he willing to pay any support to Arthur. Not surprisingly, Arthur felt completely betrayed by Ron’s “legal” strategy of taking advantage of the lack of federally recognized marriage until 2013. From Arthur’s perspective, (p. 385) they had been a family for 20 years, and all of their assets should be allocated and spousal support should be awarded accordingly.

Case #3: Erin and Stacy lived together on and off for more than 10 years, and it was a turbulent life together. Each of them had serious medical challenges as well as financial problems; they racked up debts, and at one point Stacy declared bankruptcy. When marriage became available in their state in 2010 they “eloped” in the hope that this would improve their relationship, but it did not help. They broke up within a year but have not been able to deal with the legal consequences. They do not have the funds to hire a lawyer, and they cannot figure out how to process their divorce in the local court. Making matters worse, Erin had let Stacy charge more than $20,000 on her credit card, and then Erin compounded the problem by signing an auto lease to enable Stacy to get a new car notwithstanding her prior bankruptcy. Under their state marital law, Erin is equally liable for all of these debts, but she was not willing to advance the costs of the divorce process unless Stacy took sole responsibility for these obligations. Erin strongly feels that the marital law rules should not apply, believing that Stacy’s debts should be solely Stacy’s burden.

Case #4: Antonio and Bruce met about 10 years ago at a San Francisco club and had a passionate sexual affair for a few months, which tapered off and became an occasional sex-buddy connection thereafter. Bruce has been living with an older ex-lover with whom he shares ownership of a house, but they never married or registered as domestic partners; there was no need to do so legally and they considered these sorts of legal arrangements too “hetero” for their taste. Subsequently, Antonio faced deportation. Because their state allowed same-sex couples to marry and their marriage would allow Antonio to ultimately remain in this country, Bruce agreed to marry Antonio even though they were not living together at the time. Now, just a few years later, Antonio is having financial problems and he wants Bruce to bail him out, saying that he will file for divorce and then make a claim against Bruce for alimony if he does not cover his rent. Bruce is furious, and is threatening to report Antonio to immigration authorities for a sham marriage—before Antonio is able to obtain residency rights based on their marriage.

Case #5: Sierra and Kylie had been living together as a lesbian couple for about 5 years when Kylie began to transition from female to male, and soon thereafter they registered as a same-sex couple as domestic partners (under a state law that only allowed same-sex couples to register). When they broke up several years later, Kylie made a claim for alimony because Sierra was the higher earner. Sierra was outraged, as she had been paying most of the couple’s expenses for years and felt emotionally abandoned by Kylie’s transition process. Desperate for any legal defense she could muster, Sierra asserted that Kylie was not legally a woman at the time that they registered (because the transition process had already commenced) and, therefore, their registration as a same-sex couple was invalid—in the hope that she could annul their registration and she would owe nothing in alimony.

(p. 386) The above stories are not atypical, and each of them presents a variety of questions and concerns resulting from the routine imposition of marital law rules to same-sex divorces. To some degree or another, each of these stories raises the following four dynamics:

  1. 1. A deeply felt resentment of—and discomfort with—the broad imposition of family law rules and procedures on the couple’s dissolution process. The legal process is often experienced as an alien system by many sexual and gender minorities, who, in my experience, view themselves as social “outsiders” with a long tradition of an understandable distrust of conventional legal frameworks (see also Goodman & Geldenhuys, Chapter 7, in this volume). Wholly apart from any specifics of each couple’s divorce scenarios or even the applicable marital law rules, many LGBT people undergoing divorce or dissolution proceedings feel fundamental anger over the intrusion of laws, lawyers, and judges into their private lives, in ways that are rarely expressed by straight couples.1 This appears to be especially true for same-sex couples with short-term marriages and for the less conventional same-sex couples: that is, couples who deviate socially, physically, and/or financially from dominant “norms,” or from sexual conventions or expectations of monogamy. Such couples often feel especially marginalized by society’s conventional legal rules, which historically have been based on sexual fidelity and gender-differentiated social roles and career paths.

In ways not so often enunciated by straight divorcing couples, there is an uncomfortable disconnect between many aspects of the social culture of the LGBT community and the specific protocols of the dissolution process, including the dominant role played by lawyers, rigid court obligations, duties of financial disclosure, expectations regarding mediation and negotiation, external custody evaluations, lack of any LGBT-specific understandings by judges and professionals, and the pejorative attitudes often expressed toward gender-nonconforming behavior or appearance. The consequences of this disconnect can be highly prejudicial when one partner appears “conventional” in the eyes of the legal community, while the other partner does not.

  1. 2. A broadly experienced rejection of many of the assumptions of the core family law principles as heteronormative and thus inapplicable to same-sex partnerships, including the presumptive asset-sharing rules (imposed in most jurisdictions without regard to any expectations or any implied or oral agreements of the parties), joint liability for debts, and the imposition of duties of financial support extending after the separation (a.k.a. alimony) (see also Kim & Stein, chapter 19, in this volume). There is strong resistance to traditional gender-role expectations being (p. 387) assigned to higher-earning “husbands” and lower-earning “wives”—with many higher-earning lesbians outraged at the assumption that they should be supporting their same-sex “wife” and many lower-earning gay men emotionally uncomfortable demanding support from their “husband.” This dynamic is especially apparent with class-discordant or racially mixed couples, where the differences in respective financial positions are more often the result of pre-relationship class, education, or career status, rather than the outcome of a family-based decision made during marriage, such as when one spouse declines to pursue full-time employment to fill the primary child-rearing role.

  2. 3. The presumptive marital rules often do not comport with the complex lives—and legal histories—of many of these couples. For many years, same-sex couples had no option for any form of legal recognition of their relationships. As localities and states started allowing same-sex couples to register as domestic partners, enter civil unions, and then ultimately marry, same-sex couples faced a patchwork of legal protections and obligations, the complexities of which are still working themselves out (see Knauer, chapter 1, in this volume). For example, if they registered with their local jurisdiction but not with a state registry, generally the state will not consider them married. If they registered with the state as domestic partners or acquired a civil union but did not marry, some states will consider them married for purposes of marital law at the time of dissolution—but others will not. These complexities can have serious ramifications when it comes to property and financial allocations, and can even put into jeopardy the right to obtain a legal dissolution. Of perhaps greatest impact, the lack of clear legal status can be devastating if one of the partners never established legal parentage status for the couple’s children (see Allen, chapter 11, in this volume). There are no easy solutions to many of these problems, especially for those who cannot afford sophisticated (and usually expensive) legal representation. Some commentators suggest that common law marriage rules should apply retroactively or the rules of cohabitation law should be modified to take into account premarriage commitment events as marriage-equivalent, but it is unlikely that the courts will adopt these solutions.

  3. 4. Many partners feel regret and embarrassment over the ending of a marriage that was entered into primarily as a celebration of a civil rights triumph, but which has all-too-quickly morphed into a nasty personal battle over custody, money, and property—especially where the marital rules impose unanticipated significant financial burdens on one of the partners.

In the remainder of this chapter, I discuss in greater detail each of these dynamics and related ones.

(p. 388) An Oppressive and Unwelcome System: Resentment at the “Straight” Legal Process

Courthouses and legislatures have, for many decades and in many different ways, served primarily as sources of oppression rather than justice for LGBT people. While LGBT activists have increasingly won victories in courts and legislatures in the past few decades (e.g., Obergefell v. Hodges, 2015), the legal system historically played a negative role in our community. The courts are where lesbians lost custody of their children to their angry ex-husbands (see Tasker & Rensten, chapter 9, in this volume); it is where gay men were prosecuted for public exposure after being entrapped by undercover police; and it is where discriminatory employment practices were often upheld by biased judges.

On a subtler level, many of our clients—especially those who are lower-income, immigrants, nonwhite, or otherwise marginalized—feel especially unwelcome in the formal legal system, and the family law courtroom is no exception (see Argentino & Fiore, chapter 22, in this volume; Dominguez, Coppock, & Polanco, chapter 5, in this volume; Pearson, chapter 10, in this volume). In part, this is a result of the history of different types of oppression, both on a personal and a social level, in and outside of the legal system. A black lesbian who has worked in the informal economy may not fare well in a court-supervised spousal support process. A gay man with multiple partners who marries one of his partners for the benefit of gaining insurance coverage is likely to be seen as having transgressed the conventional social rules—and thus even telling his story to a lawyer (whether the lawyer is straight or gay) may be embarrassing and uncomfortable. The legal and financial practices of many of our clients simply do not fit conventional norms—and they know that.

No doubt many heterosexual litigants feel intimidated or unwelcome in the family court system, but because a divorce involves one’s choice of partners and personal relationship histories, LGBT clients inevitably find themselves being “outed” in family court in a particularly painful way. Thus, while a straight litigant may face language difficulties, racial discrimination, or immigration problems, for example, they will likely not feel marginalized in the legal system by their sexual orientation or gender identity or experience the effects of homophobia or transphobia (whether internalized or from others). Making matters worse, histories of oppression and exclusion from conventional social and economic relationships often has led to questionable decision-making on the part of our clients in terms of bad financial decisions or unorthodox property and/or parentage arrangements, and so the overall discomfort of divorce can be intensified by shame or embarrassment about past decisions that come to light in the divorce proceedings.

The range of experiences, of course, differs widely based on the client’s place of residence, the local political climate, and whether or not the client has access to lawyers who are experienced and comfortable working with same-sex couples or (p. 389) LGBT people more broadly. At one extreme, over the past decade a number of state courts have refused to process same-sex divorces on the grounds that doing so would constitute an endorsement of the validity of the marriage—literally closing their doors to “wedlocked” gay and lesbian spouses (e.g., In re Marriage of J.B. & H.B., 2010; O’Darling v. O’Darling, 2008). Even after the US Supreme Court ruled in 2015 that same-sex couples have a fundamental right to marriage (Obergefell v. Hodges, 2015), some counties briefly refused to grant marriage licenses and, presumably, divorce decrees. Even now, in many towns it is difficult to locate lawyers with experience in this field (let alone those who identify as LGBT), and many of them focus their practice on representing clients with complex disputes who are willing to pay the full fees of the lawyers. Compounding these obstacles, none of the major LGBT legal advocacy organizations (and very few local organizations) have established low-fee or pro bono legal programs or mediation services to serve couples getting divorced. Furthermore and importantly, in most jurisdictions many of the local judges and court staff have little to no experience working with LGBT clients or have little to no knowledge about LGBT people. Worse still, some of these judges and court staff may render decisions based on anti-LGBT stereotypes and prejudices.

Filling out legal forms, meeting with an attorney, or walking into a courthouse can trigger a sense of “I don’t belong here” in ways that simply do not arise for most straight couples, and it is no surprise that the sense of alienation is especially intense when the legal issue is a divorce or dissolution. Many same-sex couples, like heterosexual couples, break up—but in previous decades, when same-sex relationships were not legally recognized in any way, same-sex couples dissolved their relationships without legal intervention. Going to court may have been necessary to fight employment discrimination or a speeding ticket, but the one area where same-sex partners were “free” from legal intervention was in the realm of their breakups. Indeed, for many years the only divorce that a lesbian or gay male spouse experienced was the termination of a prior straight marriage (see Tasker & Rensten, chapter 9, in this volume; see also Brogan Kator, chapter 17, in this volume).

The legal problems that divorcing same-sex couples often face are frequently experienced as especially punitive when the relationship (or the marital portion of the relationship) was short-lived. Few of those couples will ever “enjoy” any of the practical benefits of marriage (such as tax or benefit advantages), whereas the cost of the divorce and the embarrassment at the ending of their marriage may be the only attributes of marriage they experience. In my experience working with divorcing same-sex couples, many experience a deep sense of regret in an already emotionally charged atmosphere, especially because their marriage was not just a personal expression of their love, but also was an affirmation of the legal and political victories for the marriage equality movement. Oftentimes these same-sex couples celebrated their marriages in a public display of political victories; so the divorce is seen as a public disappointment and not just a private dispute. (p. 390) These dynamics do not present themselves for different-sex couples marrying and divorcing in this day and age.2

Just when the spouses are in greatest need of broad social support, many of our clients lack a deep network of extended family to help them (both practically and emotionally), and many of them express a lack of community support as well. Therapists working in this field have noted that unlike straight spouses who often have friends and extended family to turn to at time of divorce, many lesbians and gay men are estranged from their extended families and have not formed “chosen family” support systems—and thus have fewer options for financial or emotional support during a breakup. For this reason, while in most divorces one (or both) of the spouses is intensely unhappy about the fundamental drama of the breakup, the social and political context and lack of community support all serve to intensify the negative features of the same-sex divorce experience. This is compounded by the pain of being outed as a gay divorcee, layering the sense of social rejection on the deeper sense of disappointment that accompanies divorce. Some same-sex couples may even feel that getting married legally hastened their divorce by putting undue pressure on them to serve as a model couple showing off the newly won civil rights victories of marriage equality, multiplying the personal pain of a relationship ending.

In addition to the broader challenges posed by the imposition of a legal dissolution process on same-sex couples that have already been described, there are particular features of the divorce system that are particularly burdensome for our clients. Consider these core features of the dissolution process:

  • historically the rules of divorce were written by legislators and interpreted by judges who likely gave no thought to the lives and cultures of sexual minorities or gender minorities, and only recently (and in only a few states) have any of the rules been altered to reflect the lived experience of many LGBT people;

  • parties are expected to hire and pay lawyers to guide them through the dissolution process;

  • marriages are presumed to be the conscious culmination of a relationship formation process, and not a civil rights statement;

  • despite the high rate of divorce, the rules about financial sharing and fiduciary duties often imply an expectation that marriage involves a monogamous long-term commitment, most often living with children born “of the marriage”;

  • judges who rule on issues in divorce proceedings, including in some courts on whether or not to approve a divorce settlement, are most likely to be straight and may have only rarely if ever dealt with the issues of same-sex couples and their families.

(p. 391) In my experience, many same-sex couples find these features of the divorce unsettling or unwelcome. While couples can opt out of some of the marital law rules by means of a premarital or post-marital agreement, in most states there are strict limits on the extent to which marital law rules can be negated. Such agreements typically require legal counsel and can be both expensive and intensely demanding on the parties—both practically and emotionally. Furthermore, however unpleasant the legal system may be for LGBT people dealing with financial or contractual disputes, or even criminal matters, those legal systems—unlike family law—do not seem to have been designed with a particular heteronormative bias. While certain segments of the LGBT population may be particularly marginalized when it comes to these nonmarital legal processes, the discomfort that they feel is not the result of any focused exclusion of LGBT people or their values and assumptions. The situation is far different when it comes to divorce, where the very nature of the personal relationship with one’s partner—sexual, financial, emotional, and functional—is at issue, and the legal rules were developed in the context of heterosexual marriage and family culture. Same-sex couples are dealing with their divorce within a framework that was set up to manage the relationships of different-sex couples, as I discuss more fully in the next section (see also Kim & Stein, chapter 19, in this volume).

The Heteronormative Presumptions of Marital Law

The legislative justifications for the marital law rules, as well as the historical basis for many of these rules (in both community property and equitable property states) presume a set of conventional social frameworks that are consonant with the opinions of a majority of heterosexual couples (see Ellman & Braver, 2013). And, perhaps of greatest significance, the legal framework represents a shift from a contract-based legal process—which is applied in the adjudication of nonmarital disputes—to that of a status-based system. Palimony or cohabitation claims are resolved on contractual doctrines, focused on the agreements of the parties—whether expressly written or stated or implied by the conduct of the parties. A status-based system, by contrast, imposes a socially normative set of rules and pays little to no attention to the personal feelings, statements, or actions of the spouses. Given the historical sources of the marital law rules, it is not surprising that most straight couples will likely accept the premises of marital laws. By contrast, many lesbian and gay male couples have lived outside of the conventional social and legal systems for decades, and to be suddenly told that “these are the rules, regardless of what you felt or said,” is likely to be experienced as an oppressive and unwelcome negation of their relationships.

(p. 392) The marital law rules are also in sync with the manner in which many straight couples arrange their lives, even now with the rise of more women working in the employment market. These justifications include:

  • an acknowledgment that a majority of husbands are higher earners than their wives, both because of higher wages paid to men and also because of the greater frequency of full-time work for husbands when compared to the tendency toward part-time work for wives, especially those with young children;

  • a high percentage of different-sex spouses are raising children, with one parent (most often the mother) taking on a larger share of child-rearing obligations;

  • a recognition that in many instances the difference in incomes between different-sex spouses results from decisions made jointly by the couple during the marriage, functioning as a rational allocation of family resources (i.e., the need to maximize family income while taking care of household and child-rearing obligations), rather than the result of premarriage difference between the spouses in education, class, health, race, or social opportunities;

  • even though more than a third of different-sex marriages will eventually end in divorce, the length of most heterosexual marriages typically extends beyond 15 years, often with a resulting pattern of economic dependency and mutual support in financially discordant couples, to a much greater degree than what typically occurs in same-sex relationships, which have historically been of shorter duration (see Manning & Joyner, chapter 2, in this volume, for a discussion of same-sex relationship longevity);

  • a widespread perceived cultural notion among socially conventional different-sex spouses that the sharing of assets (and debts) and imposition of post-dissolution financial obligations is fair and reasonable, and is consistent with the mutual expectations of the spouses that they are creating a single economic unit by getting married.

Few of these rationales apply to the vast majority of same-sex married couples that I have counseled, most of whom are either old enough to have registered or married some time ago and/or acquire assets or property, but did not raise children jointly and have been together less than 15 years. And even with the increasing number of same-sex couples raising children, they remain the minority of married couples in our community. Simply as a matter of legal history, most same-sex married couples getting divorced in this decade have only been married for a few years—with few of them having marriages or registered partnerships of more than about 15 years. Generally speaking, most of these couples did not share assets in their premarital cohabitation period. Furthermore, the duration of their legal registration or marriage rarely matches the length of their committed (p. 393) relationship. The long history of nonmarital same-sex unions displays a strong tendency toward the partners viewing themselves as “equal” but independent—frequently keeping their money separate, not able to share legal parentage of their children, and not viewed as a family unit by their friends, the government, or straight society. Compounding this view, the political and legal fight for marriage has been cast as a civil rights struggle for public recognition and social benefits as a couple. It certainly has not been viewed as a campaign by isolated or financially dependent gay men or lesbians seeking to be treated as a single economic unit or to be protected by the family law obligations imposed on higher earning spouses.

Of perhaps greatest importance, the discrepancies in financial status in same-sex relationships can never be the result of a gender difference, and at least for the couples getting divorced in these early years of marriage, rarely are such discrepancies the outcome of a mutual family decision, such as who is to be the primary childrearing parent. Rather, the financial discrepancies typically arise out of prerelationship differences: class, race, education, immigration or disability status, education, or ambition. Thus, in many same-sex couples there is far less of a sense of “obligation” on the part of the higher-asset partner, or expectation of support on the part of the lower-asset partner, by comparison to what appears to be the norm for many straight married couples.

High-earning husbands in different-sex marriages regularly describe their role to me as being “the provider,” and their wives openly talk about the “family” income as something that is owned jointly by the two of them. These interconnected reciprocal social identities can provide each spouse with pride in their different roles and match their long-held expectations of the structure of their family. Thus, while there may be frequent arguments over how to allocate their shared financial resources and disagreements about what each spouse can or should contribute (both during and after the marriage), the core shared-asset presumptions of family law appear to be in sync with the expressed sense of what is fair to both different-sex spouses. Moreover, these gendered dynamics often show up different-sex couples’ premarital agreement negotiations. For example, many straight women I counsel express a strongly held expectation of their husbands’ financial duties and their own wifely entitlements—even where the women are the higher earners. And, not surprisingly, these same expectations persist in the divorce negotiations, even where the different-sex spouses are in conflict with each other over the details of their separation.

By contrast, the members of same-sex couples often have comparable incomes and any differences do not seem to be related to gender or, for most of these couples, child-rearing decisions. (Some observers have noted, however, that the social biases against gender-nonconforming LGBT persons results in more effeminate men and more “butch” women, and especially trans-identified persons, earning less than their partners who conform to a great degree to gender norms.) And even among same-sex couples with significant differences in their incomes or assets, in my experience, most often neither partner expresses a view of the (p. 394) higher-earning or higher-asset partner as a occupying the role of “husband as provider” or the lower-earning or lower-assert partner as occupying the role “wife as caretaker” deserving of financial support upon divorce.

The same-sex couples that I work with tend to operate under very different rules than different-sex couples, and the gay male couples generally operate in different ways than the lesbian couples. I have consistently seen a greater tendency of gay male couples to keep their finances separate and owning assets and property strictly in accordance to their respective financial contributions—even after they get married and even if they are raising children. By contrast, a far larger segment of my lesbian clients have shared their assets and have not kept strict track of each partner’s respective contributions. As a result of these patterns, the most frequent rift that I have observed in lesbian couple dissolutions is that there has been an excess of sharing by the higher-asset partner, which she later regrets. And yet, regardless of how money worked during their time together, many of the higher-earning partners in divorcing female same-sex couples I counsel are deeply resistant to the financial obligations of marriage. In contrast, in my experience, gay men in divorcing couples are often uncomfortable and reluctant to seek any kind of financial support from their higher-asset husband, and the higher-asset partner often does not feel obligated to offer support.

Reinforcing this tendency, in my experience, higher-earning lesbians and gay men in same-sex couples have themselves often struggled to overcome a history of low self-esteem and family and societal rejection with little support from anyone else, and consequently they may have little sense of themselves as being providers who have obligations to a financially dependent spouse. Conversely, many of my lesbian and gay clients who have lower incomes grew up with a painful self-image of being not worthy of anyone else’s support and, given the historic prohibitions on same-sex marriage, they never expected to land a high-earning “husband” to rescue them from their financial vulnerability.

Ironically, the emphasis on marriage as a civil rights struggle has, if anything, elevated the right to marry as a social/political struggle, leading many couples to marry without fully considering the consequences including asset shifting upon divorce, among other gendered aspects of marital law. The focus on the civil rights aspects of marriage for same-sex couples stands in stark contrast to the more practical approaches to marriage I have observed in my different-sex couple clients, for whom the right to marry has long existed and the practicalities of marriage are widely known and have often been the subject of open discussion.

Several studies have suggested that there is a greater likelihood of class and racial/ethnic difference within same-sex couples compared to straight couples, as gay men and lesbians are less likely to choose partners based on family background or social similarity—and ironically, this factor only intensifies the severity of the resistance to conventional marital law obligations (see Schwartz & Graff, 2009). Perhaps we will see that as legal marriage becomes the norm for same-sex couples, LGBT people will increasingly choose spouses based on class and (p. 395) economics as well as adopt the same expectations of financial interdependency that many straight couples have. But, for the time being, many same-sex couples find the imposition of heteronormative divorce rules unwelcome and intrusive.

In sum, our gay and lesbian clients rightfully sense that the legislators did not have their same-sex relationships in mind when the rules of asset sharing and post-separation financial support were crafted. While spouses of any sexual orientation may not be happy when told they must share some of “their” assets or their post-separation income with a former spouse, many gay and lesbian couples never felt that the marital rules should apply to them—if they even were aware of those rules. Many of them registered as domestic partners not knowing that marital laws applied to their relationship, or they may have believed that they had an “implied” agreement to marry only for the benefits and not for the burdens. Thus, the emphatic rejection of marital law rules at the time of divorce that many of my gay and lesbian clients express is not a newly emerging feeling in response to the disappointment of the particular dynamics of their dissolution, but rather is the embodiment of a much broader disconnect from the gendered ideas and assumptions underlying marriage and divorce rules.

Determining the Duration of Same-Sex Relationships, Legal Parentage Issues, and Other Challenges

Consider this entirely typical scenario: Brian and Carl met in 1990, moved in together in 1992, had a “commitment ceremony” in 1995, and registered as domestic partners with the City of Berkeley in 1998. In 2004, they rushed down to San Francisco City Hall to get married, but the “city” marriages were declared invalid shortly thereafter. When same-sex marriage was briefly legalized in California in 2008 they declined to get married, fearing it would just be invalidated like the last one. They waited until 2013 to get married, when same-sex couples were again allowed to marry in California. They broke up in 2016.

What is the duration of their marriage for purposes of applying community property and spousal support rules? Except for the rare minority of states that honor common law marriage claims, most courts will most likely consider 2013 as the only valid marital union. As a result, the higher-asset partner can take advantage of the convoluted, evolving history of legal recognition for same-sex couples to deprive his spouse of what a family law court would typically consider a fair share of the assets that he has acquired. And, even in those states that allow common law marriage claims, the laws require that the couple held themselves out as married—something that probably would not have been possible until marriage was legalized in at least one state in the country.

Depending on which state a couple lives in at the time of dissolution, a marriage-equivalent registration (such as most domestic partnership or civil union registrations that bestow all the rights of marriage but do not use that (p. 396) terminology) may or may not count for purposes of family law dissolution rules. If a couple registered in Vermont and lives in California, the California family law court will treat their civil union registration as marriage equivalent and will adjudicate the dissolution and apply marital law back to the date of their registration. Moreover, a later legal marriage will not shift that “date of marriage” to that later date. By contrast, if the couple lives in Pennsylvania or New York the local court probably will not recognize their Vermont registration—either for purposes of divorce jurisdiction or granting any substantive family law rights—because those states never created a similar marriage-equivalent status. Thus, unlike a straight couple that got married in one state but relocated elsewhere, where the new state court will process their divorce according to the original date of their marriage, the complicated state-specific history of the recognition of same-sex relationship laws will tend to favor the higher-asset partner to the detriment of the lower-asset partner. This is because the divorcing same-sex couples will be viewed by the law as having been married for a shorter duration of time than the duration of the couple’s marriage-like relationship.

The “date of marriage” for many same-sex couples is rarely an indicator of when the relationship became serious or when the couple made a commitment to share their lives together. Unlike most different-sex couples that could get married whenever and wherever they chose, same-sex couples’ ability to marry has been determined by a political and legal process outside of their individual control. Unfortunately, there is no “gay divorce court” that would look at the specific histories of the couple, reviewing their actions and promises in a broader equitable and social context and issue rulings that reflect their personal histories and the history of marriage in this country. Over time this problem will diminish as couples will form their relationships in a legal world that allows same-sex couples to marry, but for the next 20 or so years these disputes over marriage duration will plague the divorces of long-term same-sex couples.

The most painful of anomalies arises when only one partner has obtained legal parentage status over children co-parented by the couple (see Allen, chapter 11, in this volume). In some instances the problems arise because of the uncertainties regarding the couple’s date of marriage, and in other situations the conflicts arise in the broader context of the history of prohibition of same-sex couples marrying. For many such couples the lack of legal parentage arose because second-parent adoptions (where the nonbiological or nonlegal parent adopts the child, without severing the legal connection to the legal parent) were not allowed, whereas in other instances it is because the couple could not afford to hire a lawyer to obtain a second-parent adoption, even when it was legally possible. Other partners have faced a variety of idiosyncratic obstacles to legal parentage, such as a desire to mask their sexual orientation so they could pursue an international adoption, or a failure to complete the dissolution with a former partner because of a court’s refusal to process their request for a divorce. In these scenarios, the family courts (p. 397) will tend to favor one lesbian or gay man (the legal parent) to the detriment of his or her partner.

Access to marriage has not resolved these problems entirely, and the legal outcomes have been anything but certain (see Knauer, chapter 1, in this volume). In most states both spouses are considered legal parents of a child born during the marriage (called the “marriage presumption”), but this presumption has not always been accepted by state court judges. Some states allow nonlegal parents to be deemed parents based on the history of the couple’s relationship with their child, called “intentional parentage” or “de facto parentage,” but often protracted litigation is required to obtain such a status (e.g., Elisa B. v. Superior Court, 2005; In re S.N.V., 2011). Consider, as examples, the following cases:

  • a lesbian couple registered as domestic partners before one of them gave birth to two children and got married in California afterward. The non-birth-parent did not obtain an adoption of the second child. When the couple broke up, the birth mother attempted to deny parentage rights to her wife. Both the New York trial court and appellate courts sided with the non-birth-mom and applied the parental presumption of the domestic partnership registration and subsequent marriage;

  • because the child was born to one parent prior to the couple’s marriage, a New York court denied a lesbian co-parent’s petition for joint custody of their child. By contrast, when the child of another couple was born after the mothers got married, a New York court applied the marital presumption and found that both mothers were legal parents of their child;

  • a married lesbian woman had sex with a man during a separation from her wife and became pregnant; the court concluded that because the father was the “legal second parent” of the child, the marital presumption of joint parentage would not be applied to the same-sex couple;

  • a court in Oklahoma upheld a written co-parenting agreement between a lesbian couple to impose joint custody and shared legal parentage of the couple’s children;

  • a lesbian co-parent did not obtain an adoption judgment of her partner’s children, and so a Florida court denied her the right to seek joint custody of their children after their separation;

  • because the lesbian couple could not get married in their home state at the time of the birth of their child and they failed to travel out of state to get married before the child’s birth, a Maryland court refused to grant parentage rights to the non-birth-parent.

In many of these legal dilemmas, access to legal services—or the lack thereof—impacts the outcome for these couples. Even if the couple could not get married, for example, they could have signed a cohabitation agreement—but that would (p. 398) have required legal assistance or an ability to draft an agreement on their own. So too with regard to parentage status, an adoption is often well beyond the budget of many low-income families. Or, adding a partner as a legal co-owner of property typically triggers a transfer tax, which in some cities can be as high as $5,000—so lower-income homeowners simply do not bother clearing up a title discrepancy. Many of the solutions to these problems require money and legal sophistication, and with the exception of legal clinics in a few major cities, major LGBT legal advocacy organizations generally have not taken on these “private” dissolution disputes (other than some of the high-profile parentage actions). In most towns, the number of qualified family law attorneys willing to take on these types of matters is limited, and, in any event, legal assistance can be prohibitively expensive.

As a consequence, lower-income same-sex couples tend to face certain challenges that higher-income same-sex couples do not or could have avoided. Access to marriage makes it easier to co-own a home, set up a joint bank account, share the benefits of a retirement account, determine parentage status, or plan for one’s incapacity or death. While these benefits accrue to all types of couples, low-income same-sex couples are especially likely to benefit from their availability via marriage and, relatedly, were hit especially hard by the long denial of marriage-related benefits.

While the marriage fight has been framed as a “we versus them” campaign by united couples struggling for government recognition for their mutual benefit, these divorce conflicts inherently are a “me versus you” battle between the partners. Compounding these dynamics, marital law is fundamentally a redistribution of assets and income from the richer to the poorer partner (both in the rules of marital property distribution and of spousal support obligations), and so the denial of marital law protections will always harm the lower-income partner and benefit the richer one. If the lower-asset partner is also marginalized in other ways (such as an immigrant without legal status, more atypical in gender expression, a racial or ethnic minority who faces employment obstacles, or a disabled or uneducated person), any denial of marital law protection will intensify what is already an unfair inequality between the partners.

Divorces where one of the partners is transgender can be especially complicated in three respects (see also Brogan Kator, chapter 17, in this volume; Minter, chapter 16, in this volume). In some situations, the validity of the marriage or registration might be challenged—because the couple was not either legally “same-sex” when they registered as domestic partners (which generally has not been extended to straight couples), or opposite-sex when they married. Generally the courts have rejected these challenges, but the threat of an invalidation of a marriage or registration can be used to the detriment of the transgender partner. More often the problem is that the loss of financial support, health insurance, or emotional support can be especially painful for the transitioning partner, in ways that the other partner does not experience (see also Pfeffer & Castañeda, chapter 15, in this (p. 399) volume). And in most every such dissolution, a rejection by the nontransitioning partner is very difficult emotionally for the transitioning partner—especially where there were indications of support and understanding in the early phases of the transition.

Marriage as a Civil Rights Celebration

While very few spouses are ever proud to be getting divorced, many of my clients display a particular shame in getting divorced in the early years of the marriage equality movement. It is my sense that the underlying cause of this distress derives primarily from the social role that marriage has played within the LGBT community—more than any particular dynamics within the marriage itself. As amply demonstrated by the research of marriage motivation, access to marriage has been of significant value to lesbians and gay men in strengthening their sense of worthiness and identity (Richman, 2013). As a result, a divorce does not simply involve the loss of an intimate relationship—it can trigger a sense of failure and disappointment, both internally and in the gaze of the wider LGBT community.

Marriage has been viewed as the high point of our civil rights movement, the result of more than 40 years of political and legal activism. Many of the couples viewed their marriage as the culmination of their own political efforts, and many of the couples getting married in these early years have been celebrated as heroes and icons of our community. In news reports and in the telling of their personal stories, many of these brides and grooms spoke about how marriage strengthened their relationship, reducing stress and increasing their sense of safety and security as a gay or lesbian spouse (Riggle et al., 2016).

While the complexity, high cost, and pain associated with a legal divorce rings badly for most couples in this situation, the sense of embarrassment and shame felt by the first generations of same-sex divorces seems especially intense. In many instances they perceive—correctly, I fear—that some who were unsupportive of marriage equality are watching them, judging them, and thinking “they asked for marriage—now they see the real cost of getting married.” In the eyes of the judges, lawyers, and clerks who are handling their divorces, they see the expression of an unsympathetic disdain, saying, in effect, be careful what you wish for.

Conclusion

Access to full marriage equality is a good thing, as it offers same-sex couples the same legal options as have been long available to straight couples. At the same time, same-sex couples, as well as the lawyers advising them, need to acknowledge (p. 400) that the conventional marital law framework has its origins in a social and cultural system that is often alien to the lives and assumptions of lesbian and gay couples. For those who have access to legal counsel and are willing to work directly with each other to create an alternative arrangement in the form of a premarital agreement, there are available options to the standard marital law rules. But in the absence of such an agreement, many same-sex couples will be surprised—and often very upset—to learn at the time of a divorce how the legislatively imposed legal rules will structure their breakup.

Discussion Questions

  1. 1. What are the key aspects of the marital law rules that are likely to be rejected by same-sex couples at the time of a divorce?

  2. 2. How does the presence of children in the family affect the way couples order their financial lives, and how will it likely impact the goals and decisions of couples if there is a divorce?

  3. 3. What will the prevalent issues in a divorce proceeding likely be for gay male couples, and what will they be for lesbian couples? How does gender factor into these differences?

  4. 4. Should there be a separate set of legal presumptions for same-sex couples about the sharing of assets or payment of alimony for same-sex couples at the time of divorce?

  5. 5. What is fair when it comes to resolving the financial conflicts of long-term couples who were only able to get married recently, and thus have a short-term marriage but a long-term relationship?

  6. 6. What is the role of lawyers, judges, or community leaders when it comes to resolving dissolution disputes over money and property?

References

Elisa B. v. Superior Court, 117 P.3rd 660 (Cal. 2005).Find this resource:

    Ellman, I., & Braver, S., (2013). Citizen views about fault in property division. Family Law Quarterly, 47, 419.Find this resource:

      In re Marriage of J.B. & H.B., 326 S.W.3rd 654 (Tx. App. 2010).Find this resource:

        In re S.N.V., 2011 WL 6425562 (Colo. App. 2011).Find this resource:

          Obergefell v. Hodges, 135 S. Ct. 2584 (2015).Find this resource:

            O’Darling v. O’Darling, 188 P.3rd 137 (Okla. 2008).Find this resource:

              Richman, K. (2013). License to wed: What legal marriage means to same-sex couples. New York: NYU Press.Find this resource:

                Riggle, E., Wickham, R., Rostosky, S., Rothblum, E., & Balsam, K. (2016). Impact of civil marriage recognition for long-term same-sex couples. Sexuality Research and Social Policy, 13(2). doi: 10.1007/s13178-016-0243-zFind this resource:

                Schwartz, C., & Graff, N. (2009). Assortative matching among same-sex and different sex couples in the United States, 1990–2000. Demography Research, 8, 843–878.Find this resource:

                  Suggested Resources

                  Carrington, C. (2002). No place like home. Chicago, IL: University of Chicago Press.Find this resource:

                    Cherlin, A. (2010). The marriage go round. New York, NY: Vintage.Find this resource:

                      Coontz, S. (2005). Marriage, a history. New York, NY: Viking.Find this resource:

                        Ellman, I. (2001). “Contract thinking” was Marvin’s fatal flaw. Notre Dame Law Review, 76, 1365–1380.Find this resource:

                          Ellman, I., & Braver, S. (2013). Citizen views about fault in property division. Family Law Quarterly, 47, 419–435.Find this resource:

                            Ellman, I., & Braver, S. (2015). Child support and the custodial mother’s move or remarriage: What citizens believe the laws should be. Psychology Publications in Policy and Law, 21, 145–160.Find this resource:

                            Hertz, F., Wald, D., & Schuster, S. (2009). Integrated approaches to resolving same-sex dissolutions. Conflict Resolution Quarterly, 27, 123–143.Find this resource:

                            Nicolas, P. (2011). Common law same-sex marriage. Connecticut Law Review, 43, 931–947.Find this resource:

                              Richman, K. (2013). License to wed: What legal marriage means to same-sex couples. New York: NYU Press.Find this resource:

                                Notes:

                                1. The evolving terminology in our community creates some challenges in describing the legal issues discussed in this chapter. “Lesbian and gay male couples” (a term used interchangeably here with “female and male same-sex couples”) represent the largest segment of the clients facing the issues I discuss, though I recognize same-sex couples can also include bisexual, queer, and transgender people, among other members of the LGBT community. I also recognize that members of same-sex couples may experience important family law issues I do not discuss. For example, transgender partners can face particular legal problems due to uncertainty of their legal gender (see Minter, chapter 16, this volume).

                                2. Interracial different-sex couples may have experienced similar dynamics to those I am describing following political and legal victories ending antimiscegenation laws.