Nel's New Day

December 6, 2013

The Tragic Costs of Same-Sex Divorce

Today I chatted with two women while getting another pair of distance glasses for driving. It all happened because my partner of 44 years didn’t realize that they were prescription glasses—but that’s another story. We talked about same-sex marriage, and I said that we had gotten married in early October. One of them asked if we wed in Oregon, and I explained that it had to be in Washington because it wasn’t legal. The other woman was more savvy: she said that she had already signed the petition for the ballot initiative. Both, however, were very supportive of marriage equality.

What the discussion made me think about is how I tend to ask any wedded same-sex couple where they were married. I never ask straight people this–at least until after we’ve covered other details. At a recent fundraiser for a marriage equality ballot initiative, four lesbian couples were married and a fifth planned their wedding on Thanksgiving. The longest legally-married couple went to Canada ten years ago, another couple married in Massachusetts, and the other two, who married after the U.S. Supreme Court decision legalized federal marriage equality for some couples went to  Washington. The Thanksgiving couple went to California. All of us are ecstatic about our nuptials.

What about those married same-sex couples who didn’t remain happy? Especially when these couples live in a state that refuses to recognize marriage equality? Lauren Beth Czekala-Chatham and Dana Ann Melancon are one of these couples. Married in California five years ago, the federal government recognizes their legal relationship, but their state of residence, Mississippi, does not. The problem is that they want a divorce.

In 1997, Mississippi lawmakers amended the law to say that the state would not recognize same-sex marriages from other jurisdictions, and in 2004, 86 percent of residents voted to ban same-sex marriage in the state’s constitution. Although the couple may be the first to try for a divorce in Mississippi, couples in Texas and Kentucky have hit the same dead end because of state law.

An easy solution would be to fly back to California to get a divorce. But many states and countries, including Canada, have residency requirements for divorce. Same-sex couples can get married in these states on the same day that they arrive, but they have to live there six months or longer to get divorced. Canada’s residency requirement is two years. Fortunately, California has removed its residency requirement for divorce.

The Texas Supreme Court is currently considering the cases of the couples who want their out-of-state marriages legally dissolved in a challenge on the constitutional ban against marriage equality approved by 1.7 million voters in 2005. Attorney General Greg Abbott, leading Republican candidate for governor, stopped a court from finalizing a divorce to a Dallas gay couple and appealed an Austin judge’s decision to grant a lesbian divorce.

Wyoming, which bans marriage equality, set a precedent when the state Supreme Court ruled in favor of same-sex divorces. Over a year ago before Maryland legalized marriage equality, the state Supreme Court ruled that a lesbian couple could get divorced despite the state’s ban on same-sex marriage. AG Abbott did admit that the U.S. Supreme Court decision allowing federal same-sex marriages could overturn Texas’ constitutional provision.

“If the attorney general is so against gay marriage, why is he trying to keep these guys married?” said Peter Schulte, a lawyer in one of the cases. Abbott’s spokesman Jerry Strickland said that same-sex marriages should be “voided,” a legal method for ending what he calls an “invalid” relationship.

Some couples have gone to extremes to get their divorces. In Oklahoma, a lesbian couple  used only initials in divorce proceedings; the divorce was granted and then later declared void. In trying to get a divorce in Rhode Island, which now recognizes same-sex marriage, a women considered having sexual reassignment surgery in California so that she could have the sex on her birth certificate changed to male, making a divorce legal outside Massachusetts where they married.

In Missouri, attorney Christine Kiefer wants to divorce her lesbian partner after they married in Iowa. To do so, one of them would have to establish residency in a state that recognizes their marriage: Iowa takes a year, but Illinois only requires 90 days. At this time the two of them are seeking an annulment but don’t expect much success in their endeavor. Kiefer’s main hope is that a liberal judge will rule that their marriage never existed because Missouri doesn’t recognize marriage equality. Iowa, however, might disagree.

Ron Paul (not the presidential candidate) and his partner have the same problem. After an 18-year relationship, they went from Virginia to Massachusetts four years ago to marry. Now they want a divorce, but Virginia won’t give them one. Paul can’t take the time off from his business to move to Massachusetts and wants to marry someone else.

Kentucky residents Alysha Romero and Rebecca Sue Romero also married in Massachusetts. They filed for divorce on October 25, 2013, but everyone seems to agree that the court has to dismiss the petition because Kentucky’s anti-marriage equality amendment bans not only same-sex marriage but also the recognition of such marriages performed elsewhere. Twenty states have that ban on recognition of same-sex marriages performed in any other state, and Georgia goes farther, explicitly banning same-sex divorce.

The Romero lawyer’s strategy is to appeal the dismissal and request that the state Supreme Court throw out the marriage amendment on the grounds that it violates equal protection of law guaranteed under the U.S. Constitution.

Children make the entire divorce issue even messier. New York residents Mercedes Counihan and Molly Bishop married in Connecticut in 2009. Bishop was the biological mother of a son in 2010 before the state’s marriage equality was approved in 2011; both women signed documents for the in vitro process. Following their divorce, Counihan had no visitation rights for their son because the judge ruled there was no indication that Counihan had any parental rights. He ignored the facts that Counihan was listed as the second mother on the birth certificate and the child’s name was hyphenated with both mother’s name. The decision was reversed, Counihan has visitation rights, and the case is still wandering the courts.

The inconsistency of judicial decisions in the same state can be very frustrating for same-sex couples. Ohio has a constitutional amendment against marriage equality, but a Columbus judge granted two men a divorce last year. Yet in the same court, another judge refused a divorce to a lesbian couple, using the state’s constitutional ban on marriage equality as the justification.

Same-sex couples usually pay twice as much for divorces as heterosexual counterparts. The cost is triple if children are involved. Lawyers familiar with same-sex divorce will charge more because of additional documents, and same-sex couples are more likely to have divorce applications rejected, requiring expensive appeals. Divorced gay and lesbian couples may have had to pay federal gift tax in the past because the federal government didn’t recognize these marriages until last summer. Courts also delay the divorce because they don’t know how to handle the situation.

Because same-sex marriage in the United States has a history of only one decade, there is little information about the divorce rate for gays and lesbians. Michael Rosenfeld, a sociology professor at Stanford University, concluded that the breakup rate between same-sex and opposite-sex couples is about the same after assessing 3,000 couples since 2009. Another study from the Williams Institute, a Los Angeles think tank that studies legal issues related to sexual orientation, indicates that same-sex couples divorce at about half the rate of opposite-sex couples. No matter which is right, the problems for all divorcing couples are the same: division of property, spousal benefits, child custody, health coverage for a spouse, the ability to get remarried without bigamy charges.

A huge difference between same-sex and opposite-sex couples, however, is the fact that many gays and lesbians have been coupled to the person who they marry for decades before the ceremony because the law prevented them from marrying. During the time that they live as married couples, they merge assets and raise children together. This was the experience of Rabbi Margaret Wenig when the court ignored the 17 years she was with her partner before the legal marriage.

In addition to Oregon, four other states—Colorado, Michigan, Nevada, and Ohio—have mobilized campaigns to legalize marriage equality. Texas has no such plans, but Dallas City Council members are taking up a resolution supporting same-sex marriage.

Ultimately, however, same-sex divorce, not marriage, may overturn the ban on same-sex marriage throughout the United States. Meanwhile, states that legalize marriage equality can make a great deal of money by waiving the residency requirement for same-sex couples married in any other state.

September 18, 2013

Why We Need Federal Law on LGBT Marriage!

Since the Supreme Court overturned a part of DOMA, the federal government decided to give all federal benefits to married same-sex couples who live in one of the 13 states and the several other jurisdictions, including Washington, D.C. and six Indian reservations, that have legalized marriage equality. Same-sex couples who live in other areas but who married in one of these states or other areas can get some of the federal benefits, but not all of them. Social Security denies spousal benefits for legally married gay couples who live in one of the 36 states that don’t recognize gay marriage. Legally married same-sex spouses of activity military service members can get the same benefits as opposite-sex spouses, but veterans could not until the Veterans Administration changed its mind, following a federal court ruling.

Confused yet? Let’s talk about the federally-funded National Guard. Gov. Mary Fallin announced that Oklahoma has become the fourth state to block processing the same benefits, such as health care and housing, for legally married same-sex spouses of National Guard members that married opposite-sex spouses receive. In so doing, Oklahoma followed Texas, Mississippi, and Louisiana.

oklahoma national guard fallin 

In Oklahoma, however, the National Guard was already processing requests from same-sex couples, according to Oklahoma National Guard spokesman Col. Max Moss. Earlier this summer, they indicated that they were following federal law on benefits applications after the Pentagon issued the directive mandating the same benefits for all legally married couples.

Because the National Guard is funded and sometimes directed by the federal government, couples still get the benefits if they go to a federal facility to apply. National Guard members in the other three states can also get equal benefits for their married spouses by going to federal facilities. 

Because the Defense Department has federal facilities in every state, National Guard members can find one, although it may cause more duress for them than going to state facilities. A greater problem, however, will be  how to include same-sex couples in Medicaid expansions. Although Medicaid is paid for from federal funds, it  is operated out of state facilities because the program is state-run. A refusal to allow same-sex couples to enroll in Medicaid may land states in court—perhaps even losing their bans on same-sex marriage laws.

Louisiana has even more problems with income tax. The IRS now permits all legally married same-sex couples to file joint returns no matter where they are married. The state of Louisiana requires the same filing status on both state and federal tax returns, but it doesn’t permit same-sex marriage. Therefore it won’t allow married same-sexcouples to file joint state returns, but IRS policy says that they are permitted joint federal returns.  

Confusion reigns even in states that permit split returns, separate for the state and joint for the federal government. Because state returns are often based on federal returns, these couples may have to first prepare and file a real return—reflecting their joint taxpayer status—and then prepare (and not file) a dummy return as a single taxpayer in order to get the correct adjusted gross income amount necessary for transfer to the state return. Before DOMA was overturn, same-sex couples in states that allow joint state returns because of marriage, civil unions, or domestic partnerships had to do the reverse—producing single-taxpayer federal forms and joint-taxpayer state forms.

Another order from the Treasury Department states:

“Because employee benefit plans are extensively regulated by federal law, this announcement means that even employers in states that do not recognize same-sex marriage will be required to recognize such marriages for many employee benefits purposes.” 

It appears that federal employees in all states will receive these benefits. This chart delineates the conditions.

The Social Security mandate that same-sex couples must live in a place that honors marriage equality to get these benefits is further muddied by civil union or domestic partnership laws of individual states that also ban legal marriage for same-sex couples. Those couples may be able to claim such benefits because it defers to state inheritance law to determine eligibility (and all civil union laws allow partners to inherit as if they are married).

A major issue for married same-sex couples who don’t live in states recognizing marriage equality is getting a divorce. When Massachusetts first legalized same-sex marriage, many couples traveled there to be wed. States such as Texas that do not recognize married same-sex couples also refuse to recognize the divorce of these same-sex couples. When two gay couples in Texas sued Texas for divorce, Attorney General Greg Abbott argued that recognizing the divorce would also recognize marriage in the state, now banned by the state constitution. The case has now gone to the state Supreme Court.

The divorce issues started at least five years ago when a Rhode Island resident tried to divorce the woman she married in Massachusetts. At that time, Rhode Island did not recognize marriage equality, and the woman ended up in legal limbo. If she remarried, would it be polygamy? How could they legally divide joint assets? Another woman married in Connecticut and then went back to her home state where there was no court to deal with the child that belonged to both of them if they had stayed in Connecticut.

Dividing assets differs depending on the length of time that a couple has been married. But couples getting divorced may have been together for decades before they were able to legally marry. Some courts may decide to determine that period of time as the couple being “just friends.” 

Transgender people face horrible legal consequences from the muddled laws. For example, Nikki Araguz was denied death benefits in Texas after her volunteer firefighter husband was killed in the line of duty. A judge ruled that her marriage was “invalid” because she is transgender. Three years later, while she is still litigating the case, she wanted to remarry. Texas turned her down because the state is treating her as a man. Araguz’s identification identifies her as a female, and she has the appropriate documentation, including an amended birth certificate. The Family Code in Texas states that this identification is sufficient, but a clerk insists that the state’s ban on same-sex marriage superceded the Family Code. Because her original birth certificate listed the wrong gender, she cannot be legally married. In Texas, she could be a lesbian and marry a woman because Texas sees her as a man. 

This situation is not unique: several states insist on using the gender assigned at birth as the ultimate and only gender for their residents despite gender expression and transition.  

Araguz is still litigating Texas’s refusal to give her benefits as a widow. The 13th District Court of Appeals in Corpus Christi is hearing Araguz’s case today and will decide whether the state will be required to recognize her marriage to Thomas Araguz. Heather Delgado, Thomas Araguz’s ex-wife, is suing to have his marriage to Nikki Araguz declared invalid so that Delgado can then receive the widow’s benefits. 

Litigation in the next year–or more–will profit lawyers and deplete coffers in many states. At the same time, the confusing legal system distorting rights of marriage—and divorce—for LGBT people is ruining lives. Time to fix this whole system!

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