Gay Divorce: For Gay Couples, Divorce Equality Is Also A Trial

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(The author is a Reuters contributor. The opinions expressed are his own.)

By Geoff Williams

July 5 (REUTERS) - Gay couples rejoiced last week when the Supreme Court struck down the Defense of Marriage Act (DOMA) and cleared the way for federal recognition of same sex-marriages.

They should push for divorce equality, too.

That's something Jason Dottley, a Los Angeles pop singer and actor, would like to see. He filed for divorce in April 2012 from his husband, Del Shores, a film director and playwright. Dottley and Shores married in 2008, a brief time of marriage equality in California.

"People at the courthouse didn't know how to handle the divorce," says Dottley, noting that extra paperwork aimed at same-sex couples dragged the process out for a full year.

At least Dottley and Shores split in a state that had recognized gay marriage. For couples who wed and then move to one of the 37 states that don't recognize it, gay marriage can become something of a trap.

IT'S ALL ABOUT GEOGRAPHY

Divorces, unless they go through appeals and work their way up to a higher court, are always worked out in the state in which a couple lives. So if a state doesn't recognize gay marriage, a gay couple can't divorce there. At least one member of the couple will generally need to move.

That has led to feelings of desperation on the part of cash-strapped couples or those geographically tied because of children, careers and homes.

"I have heard of couples who have filed for divorce by using their first initials on the forms, so the court won't realize they're a same-sex couple and the divorce will be granted, and then when the court does realize it, they take it back, and they're married again," says Carolyn Satenberg, a family law attorney in New York City whose primary focus is on matrimonial issues related to same-sex couples.

DOUBLE, TRIPLE THE COST

"If a couple has been married or together for a long period of time, a gay divorce usually costs double what it does for a heterosexual marriage," says Satenberg. "Having kids triples the cost."

This is true even in states that recognize same-sex marriage, because gay marriage is still a relatively new legal concept. Many gay and lesbian couples have had long relationships - sometimes afforded legal status as civil unions - before they were permitted to marry. So deciding when two partners' commitments to each other began isn't always easy.

A "civil union" in Vermont begun in 2001 is not the same as one in Hawaii begun in 2013, observes Robert Stanley, a family law attorney in Beverly Hills, California. If couples have moved to other states, it gets even more complicated. Even within a state, a couple who legally started a domestic partnership in 1999 in California might have fewer legal rights than a couple that formed one in 2005, when more rights were spelled out.

Courts haven't reached consensus about when a gay couple's legal bond begins, says Stanley. Should it begin when, denied marriage, a couple hold a ceremony for friends and family and declare themselves married, or when they finally register with the state?

In a contentious case involving a lot of assets, there is often more legal work involved in pushing a gay divorce through the courts.

PRENUPS AND POSTNUPS

For gay couples who have yet to walk down the aisle, or married couples who simply want to protect themselves, attorneys say the smartest thing is to plan for a possible divorce.

A pre- or post-nuptial agreement will help if you ultimately split in a state that recognizes gay marriage, but there are no guarantees it will get you anywhere in a state that doesn't.

"It may not be enforceable, but it's advisable," says Julia Swain, a family law attorney in Philadelphia. She recommends the document be crafted under the laws of the state the couple lives in instead of the state where they marry.

Same-sex couples who want to divorce and are living in a state that doesn't recognize gay marriage may be able to stay put if they hire a savvy attorney. But it really comes down to who wields the gavel. Last year, in Columbus, Ohio, one judge granted two gay men a divorce, despite the state's not recognizing same-sex marriage; days earlier, a different judge in the same court refused to approve the divorce of a lesbian couple that lacked legal representation. (Follow us @ReutersMoney or at http://www.reuters.com/finance/personal-finance Editing by Linda Stern and Prudence Crowther)

Dana Beyer: Waiting for the Supremes: There Is 'More Than Marriage' on the Equality Agenda

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While we await, hunkered down and hardly breathing, the Supreme Court marriage decisions later this month, let's not forget there is more to freedom and equality than the right to marry and receive federal relationship recognition. There remain all the civil liberty and economic empowerment issues that attach to being an American citizen, whether one is gay, trans, or queer in the broadest sense, and whether or not one is in a relationship, for better or for worse.

This week there have been two campaigns focused on individual liberty, one a social media campaign #morethanmarriage to educate and inform, and to lay the groundwork for the post-SCOTUS world. The other a legal case, Howe v. Haslam brought to the Tennessee Court of Appeals, the outcome of which may have huge, broad repercussions for people across the fifty states.

There have been a number of organizations working on aspects of the LGBT civil rights campaign alongside the marriage campaigns, including some organizations such as HRC and our research and legal advocates, which try to cover most if not all of the bases, if not always at the same time. Laboring for anti-discrimination laws are, first and foremost, local and state organizations, including my Maryland organization, Gender Rights Maryland, while the only national organization dedicated to the employment discrimination issue is Freedom to Work. There have been social media campaigns, with petitions on www.change.org, and now the latest campaign, from the Transgender Law Center in San Francisco, called #morethanmarriage. While heavy on the trans rights aspect, as one would expect, it is also pushing for anti-discrimination laws to protect gender-conforming gay persons as well. The effort is to not only educate the larger American community that the LGBT community doesn't have the basic rights most Americans take for granted, and most Americans believe we already have, but to educate the gay community so they recognize that marriage equality, while very significant practically and symbolically, is not the be all and end all of equality.

In support of such broad protections, Lambda Legal has filed an amicus for a case pending in the United States District Court for the District of Columbia, Terveer v Billington. (The Librarian of Congress, Mr. Billington, can't seem to avoid getting into trouble). The significance of this case is that it is seeking to have sexual orientation discrimination recognized as "sex discrimination" under the law as set out in Title VII of the 1964 Civil Rights Act. This case parallels the efforts of Professor Feldblum of the EEOC to have the Commission recognize sexual orientation discrimination as a subset of sex discrimination, just as it already recognizes gender identity and expression discrimination as a subset of sex discrimination.

The other case, Howe v Haslan, confronts a very noxious new campaign by fundamentalist forces to overturn duly passed laws by local municipalities to protect their LGBT population. While it has been difficult to but slowly increase the number of states with comprehensive anti-discrimination laws on their books (16 states + D.C. + Puerto Rico, and 21 states with sexual orientation-only policies), there are many more local jurisdictions, over 140, which offer the same protections within uncovered states. The results of the 2010 midterm elections led to a tidal wave of Republican control of state legislatures, some of which are trying to overturn their local protections. At the forefront is Tennessee, possibly the state most hostile to the LGBT community today. The Tennessee legislature in 2011 passed HB600, nicknamed the Special Access to Discriminate ("SAD Act") by equality organizations. The state law stripped local governments of their non-discrimination laws. As the plaintiffs, including Marisa Richmond, the Tennessee Equality Project and the Tennessee Transgender Political Coalition, stated, "HB600 was founded in prejudice and motivated by certain legislators' desire to punish the city of Nashville for enacting an ordinance for extending existing local protections to gay and transgender Tennesseans. As the U.S. Supreme Court has held, in a case very much like this one, "if the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate government interest."

I had the pleasure of befriending Nashville Councilwoman Megan Barry when we were classmates at Harvard's Kennedy School in 2008. She soon became the chief sponsor and major power pushing Nashville's comprehensive anti-discrimination ordinance, which covered the city's trans as well as gay populations. Now, following the reactionary sweep in the state in 2010, her law hangs by a thread in the court.

This case highlights the power of local government to do good, even when it takes political capital to do so, and the ever-present possibility of a reaction which can overwhelm that good when greater power is brought to bear. It is hard to believe that the court in Tennessee would ignore the judgment from Romer v Evans, but it might, and this case may end up at the U.S. Supreme Court. It bears watching, as other strongly majority Republican legislatures would jump on a bandwagon to mimic Tennessee and make life as miserable as they can for their gay and trans citizens. Pro-equality decisions from SCOTUS will do little to impede this conservative anti-freedom campaign, and might even create a backlash.

One last point -- take note of the language used by the reporter for The Tennessean, as an example of the deeply rooted bigotry coloring coverage of this case:

[...]Monday, attorney Shannon Minter with the San Francisco-based Center for Lesbian Rights told the three-judge appeals panel that there is "nothing like this in the country that specifically excludes one group of people." She called the state law "a dangerous statute that warrants some judicious scrutiny.

Shannon is a trans man, and has been for many years. There is no way anyone would mistake him for a woman. Imagine what life is like being transgender in Tennessee today.

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