IF you thought the fight over same-sex marriage has been tumultuous, just wait for the era of same-sex divorce. With New York State’s new law allowing same-sex marriage, not just for residents but for out-of-staters as well, a bumper crop of weddings is sure to follow — and, eventually and inevitably, a sizable number of divorces.
But Americans are a roving sort, and people who marry and move to places hostile to their union could find, in disunion, a legal limbo. A couple who marry in New York and seek a divorce in Texas could find themselves fighting not just each other but also Texas’ attorney general, Greg Abbott. He has tried to intervene in two same-sex divorces, arguing that if the state does not recognize the marriage it won’t recognize the divorce, either.
If blocked in Texas, the unhappy couple can’t head back to New York for a quick split either. New York’s same-sex marriage law does not require residency to wed, but the state does require residency of at least 90 days to obtain a divorce. A stay like that is out of the question for most people.
“Where can you get a divorce?” asked Tobias Barrington Wolff, a professor at the University of Pennsylvania Law School. “The answer might be nowhere, perversely.”
Do a little reductio, and it’s not a long way to absurdum.
Andrew M. Koppelman, a professor at the Northwestern University School of Law and the author of “Same Sex, Different States: When Same-Sex Marriages Cross State Lines,” said that if Mr. Abbott and other attorneys general were truly serious about not recognizing same-sex marriages, they would allow obviously mischievous results. “You’re saying that somebody who lives in Massachusetts can empty the safe-deposit box, empty the bank account and go to Houston — and say, ‘Ha, ha, ha, you can’t come after me here, because Texas doesn’t recognize your marriage’?” he asked.
Conceivably, he said, a woman in a same-sex marriage in New York could abscond to the Lone Star State, where she might then marry a man, since the previous marriage doesn’t exist there. She wouldn’t even have to tell him that she had a wife in New York. “Has Texas legalized bigamy?” he wondered.
Margaret M. Brady, a lawyer in New York specializing in family law for same-sex couples, said that even those couples facing no extraordinary obstacles to divorce would find it a very different experience from that of heterosexual couples. Under New York law, the automatic division of property covers only assets acquired after marriage, not “premarital contributions” to things like real estate. Yet some of her clients were together 15 years or more before marrying. “It will be interesting to see if the courts will be willing to take into consideration those premarital contributions made at a time that the couple could not avail themselves of the privilege of marrying,” she said.
Same-sex divorce, of course, is not new. Massachusetts first allowed same-sex marriage in 2004 (and Vermont allowed civil unions in 1999). Some of the pioneer couples in such states have realized that connubial bliss isn’t. But the addition of New York, which, with 19 million people, is the third largest state by population, will add many new cases and conundrums. “There have been only a handful of cases on the topic, but that is sure to change,” said William C. Duncan, the director of the Marriage Law Foundation, which provides legal resources for those supporting traditional marriage.
People have gotten around barriers to divorce before. In more puritanical days, many states prohibited divorce unless one spouse could prove a transgression like abandonment, sexual escapades or cruelty. Mini-industries grew up in states like Nevada, where establishing residency took only a few weeks. Even just one spouse could break the bond for both.
Over time, however, the Supreme Court whittled away at the power of states like Nevada to put couples asunder, and the rise of no-fault divorce made the trip unnecessary. The quickie Reno divorce faded away.
Today, denying divorce denies justice, said Allen A. Drexel, a family law expert in New York with a large practice among same-sex couples. “The right to obtain a legal divorce is one of the most important, if least celebrated, rights of marriage,” he said. The process of separation can bring out the worst in people, he said, and “the incentives to game-play and to engage in forum-shopping to take advantage of the inconsistent legal treatment exists.”
Ms. Brady said that divorce, whatever the sexual orientation involved, is the state’s way of compelling fairness for the families of couples who have fallen out of love. It seeks to protect the weaker, poorer spouse, and the children as well. The state can require alimony, child support and maintenance payments to ensure that any children live in similar circumstances no matter which parent’s home they sleep in. She said such arrangements, properly imposed, force divorcing couples, gay or straight, “to find their better selves, and have them act accordingly.”
Richard Socarides, who was an adviser to President Bill Clinton on gay issues and is now president of Equality Matters, an offshoot of the Media Matters press-monitoring group, said the present inconsistencies in the law might eventually work to move the cause of same-sex marriage forward as more and more people come out, marry and, yes, divorce.
“These people are my friends, my neighbors, my co-workers,” he said. “It’s going to be pretty hard to discriminate against such a large group of citizens. It can’t be sustained.”
And so, he said, “at some point, probably sooner than we think, people will just start to say to themselves, ‘What’s all the fuss?’ ”