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Gay Divorces in New York: Marriages By Default?

by Kilian Melloy
Tuesday Feb 26, 2008

What makes a family? Sharing in life's triumphs and travails, some would say; dividing up domestic chores, others might argue. In a New York ruling, though, divorce, as much as togetherness, might just delineate family.

The New York Daily News reported in an article published today that a New York State Supreme Court justice has ruled that the marriage performed in Canada for two women residing in New York must be recognized by New York state law.

Therefore, ruled Justice Laura Drager, the womens' marriage cannot simply be declared null. For the two to legally disentangle, they must proceed the same way every other legally recognized family does: with a divorce.

The ruling, reported by the New York Post to be precedent-setting, was handed against a political backdrop that sees some expectation for the New York State Assembly to approve marriage equality legislation at some point, most likely next year--a bill that Governor Eliot Spitzer, who campaigned in part on a platform of GLBT equality, has already said he would sign.

Meantime, in neighboring New Jersey, a commission studying whether civil unions offer enough protections to same-sex families to qualify them as, in fact, creating marriage equality has determined in a preliminary report, issued Feb. 19, that civil unions do not, in fact, create marriage equality, but rather relegate couples of the same gender to "second class status," according to the Associated Press, which published a story on Feb. 17, in advance of the publication of the commission's findings.

When "Beth R." sought a divorce from "Donna M.," whom she had married in a 2004 ceremony celebrated in Canada, "Donna M." responded with the legal argument that because the women had been married in Canada, where marriage equality is the law of the land, rather than in New York, where current law forbids marriage between people of the same gender, the marriage carried no weight under state law and no divorce proceedings could take place.

The case went to court, where Justice Drager ruled that "out-of-state same-sex marriages are properly recognized under our law," thereby honoring the status of the two women as a legal family in the breach--but honoring it all the same.

"Beth R." will now be able to press on with the divorce, which will include a custody battle for the couple's two children (which are biologically the children of "Donna M.")

Drager based her ruling on the observation that there are only two instances in which New York law refuses to recognize marriages performed outside the state.

In one instance, marriages performed elsewhere can be refused recognition in New York if state law specifically provides for such refusal.

In the other instance, the state of New York could refuse to recognize a marriage that would be "abhorrent to New York public policy."

Although state law bars the granting of marriage to same-sex couples within the state, it does not specifically say that same-sex marriages performed elsewhere cannot be honored in the state.

As for marriages deemed "abhorrent to New York public policy," Drager found that these constitute a very narrow and limited field: "so narrow that it has been applied only to marriages involving polygamy or incest," the ruling said.

Raoul Felder, the attorney for "Donna M.," disagreed, saying, "The judge's decision was scholarly and well thought out, but it sets aside 200 years of decisional and statutory law in New York."

Added Felder, "She wants to change the law. That's something for the Legislature to do."

Felder said that he would appeal the case.

Susan Sommer, attorney for "Beth R.," saw the ruling differently. saying that the judge had not rewritten the law, but rather was "just applying it in a different situation."

If the divorce proceeding were to go forward, it would involve questions of custody even though "Donna M." had given birth to both of the couple's daughters, one in 2003, and the other in 2006.

Older daughter "J.R." called "Beth R." "Mom," and "Donna M." "Mommy." The judge's ruling noted that both spouses "cared for the children and contributed to their support."

Drager's decision describes both women as in their 40s and working in media.

"They met in late 1999 and soon thereafter entered into an intimate relationship," Drager wrote.

They moved in together, and Donna M. had a baby via artificial insemination in October 2003. They tied the knot in front of family and friends in Toronto on Valentine's Day in 2004, and Donna M. gave birth to another girl in 2006.

The elder child, identified as "J.R.," referred to Beth R. as "Mom" and Donna M. as "Mommy," and both women "cared for the children and contributed to their support," the judge wrote.

The ruling could mean a tough custody battle even though "Beth R." did not adopt the children.

Another case of two women splitting up and turning to the courts to determine whether the relationship being dissolved was, in some sense, a marriage by default, also hit the news with a story published Feb. 26 by the New York Daily News.

The second couple, who reside in Manhattan, are also going through a legal battle the outcome of which could bolster the argument that couples of the same gender need and deserve the same treatment before the law that heterosexual couples are granted.

Halina Avery and Molly Caldwell, reported the New York Daily News, were together for 14 years, during which time they wore commitment rings and held property in common.

Now, as the two are in the midst of splitting up, Caldwell says that she is entitled to her share of the couple's belongings.

Said Caldwell, "I considered Halina my spouse."

Continued Caldwell, "We had everything that married couples had. Our families considered us married."

Court documents contain a statement from a friend of the women who said that the two had been "family in every sense of the word," reported the New York Daily News.

The couple broke up in 2006, but the legal ramifications continue, starting with a suit that same year in which Avery sought to have Caldwell removed from her life insurance policy.

Avery also attempted to oust Caldwell from the co-op that the two jointly owned.

Caldwell fought back, going to court to win support as Avery's ex, as well as a portion of the couple's assets, which could be considerable; Avery's career is in opera, but she is the heiress to the Fortune 500 company Avery Dennison office products.

Said Aaron Goodman, attorney for Caldwell, "This was, for all intents and purposes, a marriage."

Continued Goodman, "They should be treated no differently than the parties in a divorce."

But Avery's attorneys say that Caldwell is looking for the things that a married woman going through a divorce would look to obtain. They also say that the women had what amounted to a prenuptial agreement in place before the breakup.

Said Avery;s attorney Yetta Kurland, "They never entered into, nor intended to enter into, a marriage."

Continued Kurland, "If they had intended to marry, or file as domestic partners in New York City, then they would have done so."

The agreement that both women signed in 1995 stipulates that in the event of their relationship ending, neither one would seek property or money from the other.

Said Kurland, "Any rights [Caldwell] could have had would have been waived in the agreement."

Added Kurland, "She's asking the court to ignore that living-together agreement."

Kurland said, "This former relationship was significant in time and commitment, but it was not a marriage," and its end ought not to be treated as a divorce.

But Goodman declares, "What this is, is a divorce."

Says Caldwell, "What I really would just like is for myself and others like me to be treated fairly."

Manhattan Supreme Court Justice Leland DeGrasse will rule on the case.

Kilian Melloy serves as EDGE Media Network's Assistant Arts Editor. He also reviews theater for WBUR. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.


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