With Gay Marriage comes... Gay Divorce

by Padraic Maroney

EDGE Media Network Contributor

Monday March 22, 2010

You would think from listening to right wing pundits that gay marriage is key to the breakdown of America's moral order. But, If statistics are to be believed, that threat to marriage comes more from the break-up of heterosexual unions since the introduction of no fault divorce in the 1970s. Today close to half of marriages in the United States end in divorce (with 20% occurring during the first five years). Marriage, it turns out, is its own worst enemy.

Then in the 1990s comes gay marriage to complicate matters even further. Conservatives did their best to categorize it as the end of the moral order as we know it, but progressive states (most notably those in New England led by Massachusetts) found legal grounds to allow for same sex couples to marry. The Massachusetts ruling came nearly six years ago; and in the ensuing period the ridiculous claims by conservatives failed to materialize. What did follow, though, was the inevitable progression from marriage, especially in the United States: gay divorce.

While gay divorce statistics aren't readily available, the media coverage of same sex divorces leaves some wondering if this phenomena will be an additional argument for conservatives to use to deny equality.

What, though, is more pressing is the manner with which these divorces are handled across state lines, especially with most states not recognizing gay marriages in the first place.

First Comes Marriage...

Massachusetts became the first state to legalize same sex marriage, and in the first four years more than 10,000 marriages were performed for gay and lesbian couples. In the ensuing years a number of states approved gay marriage (New Hampshire, Connecticut, Iowa, Massachusetts, Vermont, and Washington, D.C.); some approved then rescinded the decision (California, Maine); and a handful may not allow gay marriages to be performed within their borders, but recognize those from other states (New York, Rhode Island, and Maryland), While in California, following the passage of Proposition 8 in 2008, some 18,000 marriages (which took place over a short four-month window from June to November) are recognized by the state.

Back in 2004, there was early on a lot of uncertainty following the Massachusetts ruling. Ken Harvey, author of the upcoming book A Passionate Engagement: A Memoir, remembers what it was like to get engaged and planning a wedding following the legalization.

"Those six months were fairly uncertain whether people going to get married," explained Harvey. "It was a time of being hopeful but not wanting to get crushed."

Harvey got married in January 2005 during Martin Luther King Jr. weekend.

But what of gay divorce in Massachusetts? Do the numbers match the national rates? Some early statistics have come out that those states with legalized gay marriage also have a lower divorce rate than other states. Massachusetts alone is the state that has seen the fewest divorces occurring over the last few years. In fact the state had the lowest divorce rate in the nation in 2007, revealed a report from the Division of Vital Statistics last October.

According to the Washington Post, "Nearly 10,000 gay and lesbian couples married after the ruling. Massachusetts does not keep records on the number who have divorced, but lawyers who specialize in family cases say it is in the dozens."

However, making a blanket statement that legalizing same sex marriage will lower the divorce rate in that state is too soon.

"We only have data back to 2004; six years isn’t enough to tell," Dr. Joni Frater, co-author of "Love Her Right: The Married Man’s Guide to Lesbian Secrets for Great Sex."

Daniel Clement, a divorce lawyer practicing in New York City, also warns against putting too much faith in the statistics because lower divorce rates have been a trend across the board.

"In states with same sex marriage, divorce has declined. I can’t explain it," Clement said. "The divorce rate as a whole has been down the same time the economy tanked.

"The statistics are skewed. In our society people move a lot, particularly in this economy and need to change jobs and find jobs in different states," concurs Steven Knowles, of Knowles Collum LLP in California. ? 

...Then Comes Divorce

While the states are still arguing whether or not to even allow gay couples to get married, the first wave of same sex couples looking to divorce are making their way to the courts. But with no federal ruling, the divorce proceedings for some couples have made national headlines that would normally not even be mentioned in newspapers.

When Julie and Hillary Goodridge, lead plaintiffs in Massachusett’s landmark gay marriage case, announced they were seeking a divorce in February, 2009, the media treated the news as if they were Hollywood celebrities on the skids.

In Texas, a case involving a couple looking to get divorced made headlines late last year when Judge Tena Callahan ruled that the divorce  proceedings could continue in the state that doesn’t even recognize the marriage.

The case brings to light another issue that hasn’t been discussed quite as much. If a couple gets married and then moves to a state that has either banned or not yet ruled same sex marriage, the law doesn’t quite know how to handle those relationships.

"It’s cause and effect. One can’t be divorced if not married," explained Clement. "The truth of the matter is there will be gay divorce. Every relationship ends - either through death, hopefully at a ripe old age, or break up."

There are currently three types of states. First, states like Massachusetts where marriage is legal and therefore the right to get divorced is treated the same way as heterosexual marriages. Second, states like New York where same sex marriage is not legal, but they recognize the marriages from other states. In this case divorces are also treated the same as have always been. Third are states like California and Texas were same sex marriages are not legal or recognized. It’s in the last set of states that things are trickiest. 

Divorce laws trailing behind

"Divorce laws have trailed so far behind," explains Kathryn Dickerson, a partner at SmolenPrevy in Virginia. "It’s not a top priority for some people. When you think about the number of gay couples divorcing, there’s other things the government is working on."

Because the laws have trailed behind, there are loopholes for people who want to get a divorce. One such loophole is at the center of the Miller-Jenkins custody battle currently unfolding in Virginia.

The couple had committed in a civil union eight years ago. But then Miller, the biological mother, denounced her sexuality and became a devout Baptist. In doing so she also moved to Virginia, a state that doesn’t recognize any same sex unions.

"In family law, the heart of the matter is child custody battles," said Glenn Sacks, National Executive Director of Fathers and Families. "All play out very similar to Miller-Jenkins. The only difference is Miller has found God and God hates gays."

What Lisa Miller did in the custody battle is something called forum shopping, which is currently allowed with all same sex marriage disputes. Forum shopping allows the person to find the place where the filer would have the most favorable results. As it currently stands, if someone in a marriage they can move to another state and establish residency to get the results they want.

"They shop for the proper forum. If one state is legal. Kind of like Miller did; it opens things up to legal shenanigans," explains Sacks.

Dianna Gould-Saltman, a partner at Gould-Saltman Law Offices in California, agrees that forum shopping opens the couple to play games with each other. " When only six states are giving [marriage equality], there’s always going to have one partner benefitting.

Another loophole that exists is if a couple moves to a state that doesn’t recognize their marriage, the couple is actually free to just break up and walk away as if they were never married. However, for couples who move to a non-recognizing state, there are some steps that can be done to keep some aspects legal. The couple could look into contractual rights, such as Marvin claims, which puts things in a contract to be followed.

"You have to prove there was a contract. Sex doesn’t matter," explains Knowles. "It doesn’t have to be written. It can be implied by conduct." 

Conservative Field Day

With a few notable cases making their way through the court system, same sex divorce has been making headlines - mainly because not all states know how to handle them if marriage equality hasn’t been granted in that state.

With these early divorces making headlines, the conservatives opposing same sex marriage could go on the attack pointing out how quickly the marriages are being dissolved. But some warn that if any kind of campaign was to be started it would actually have a negative effect on the conservatives groups making the claim.

"No question it will be used against us," said Harvey. But he warns, "When the divorce rate is 50 percent, not a lot of finger wagging can be done." ? 
Didn’t work for Segregation

One thing that most people are in agreement about is that letting states decide how to handle the issue of legalizing same sex marriage is not the way to achieve anything.

"Leaving it up to the state is crap. It didn’t work for segregation," explained Esther Lastique, co-author of Lover her Right. "When left to their own devices, small minds have so much power."

Knowles agrees that the red states who adamantly oppose same sex marriage will not go willingly into accepting all types of marriages. But if the federal government steps in it would speed up the process.

"Ultimately, it will take action on the federal. The very red states are not going to partake in same sex marriage until they have to," Knowles opines.

With the piecemeal way that marriage equality has been being granted, there is still a lack of acceptance of marriage as an expected progression in life within the LGBT community. In heterosexual relationships, it is expected that marriage is the ultimate endgame for a couple at some point. However the same isn’t necessarily seen in gay community.

"Marriage in the heterosexual world is an expected marker of life. I don’t know if it is with same sex couples," said Harvey.

It’s an opinion that Knowles agrees with.

"In heterosexual couples, it’s expected to get married sooner or later. Not so much in gay relationships," Knowles said. "It’s not as inevitable."