Same-Sex Divorce in New York

Now that an Appellate Division panel in New York has ruled that a same-sex marriage contracted in Canada is recognized in New York, the next step is for a New York court to entertain a divorce action for a same-sex couple married in Canada.  Today, that happened.  In Beth R. v. Donna M., No. 350284/07, N.Y. State Supreme Court Justice Laura E. Drager, N.Y. County, citing Martinez v. Monroe County, 2008 N.Y. Slip Op 909 (4th Dep't 2008), today (Feb. 25, 2008) denied the defendant's motion to dismiss a divorce action on the ground that a same-sex marriage contracted in Canada is void in New York.  Susan Sommer of Lambda Legal served as lead counsel for Beth R.  The Raoul Felder law firm represents Donna M., and announced that they would appeal to the First Department, Appellate Division.

Martinez v. Monroe County is, for now, a state-wide precedent binding on the trial courts.  Although there are appeals pending in the 2nd and 3rd Departments that will present the question of recognition of same-sex marriages and may open up a split in the Appellate Division, and although the Monroe County Executive has announced that the County will ask the Court of Appeals to review the Martinez decision, for now Martinez is controlling.

In this case, the same-sex lesbian couple married on February 14, 2004, in Toronto. (They had actually obtained a marriage license in 2003, but did not heod their wedding as planned due to a family death and the first license lapsed.  They obtained a new license prior to the wedding.)  At the time, they had a three-month old daughter born to Donna M. through donor insemination, and they subsequently had another daughter, also born to Donna M.  Beth R. is not an adoptive parent of the two girls. 

The spouses have been jointly raising both children from birth, and they are known to their daughters as "mom" and "mommy."   In September 2006, when the children were 3 years and 6 months, respectively, Donna announced that she wanted to end the marriage, although the parties continued to live together in Donna's apartment until the spring of 2007, with Beth sleeping in a separate bedroom with the younger child.  On April 17, 2007, Donna served a "notice to quit" on Beth to remove her from the apartment.  On April 24, 2007, Beth filed an action for divorce.  Donna filed a motion to dismiss the divorce action, arguing that the women are not married under New York law and so there can be no divorce.  Beth then moved the court for a determine of her continuing custodial rights and support obligations for the two children.

Justice Drager's analysis is straightforward: "Defendant moves for dismissal of this action.  She contends that the marriage is void under New York law.  Since there is no marriage, there can be no action for divorce. [CPLR secs. 3211(a)(3), (7)].  Defendant relies on the finding by the Court of Appeals that New York prohibits the marriage of same-sex couples.  Hernandez v. Robles, 7 NY3d 338 (2006).  See also, Funderburke v. New York State Dept. of Civil Service, 13 Misc.3d 284 (Sup. Ct., Nassau Co. 2006).  Defendant's motion is denied.  Martinez v. Monroe Community College, _AD3d_, 2008 N.Y. Slip Op 909 (4th Dept. 2008)."

This is followed by a lengthy analysis that does not mention the Martinez case frequently, but replicates and expands on its reasoning, pointing out that Hernandez did not address the issue of foreign marriage recognition, and reviewing in some detail the wide range of out-of-state marriages that have been recognized in New York even though they could not be contracted within the state.   The court notes the positions taken by Gov. Spitzer (when Attorney General) and current Attorney General Cuomo that valid out-of-state same-sex marriages should be recognized here, and the 2004 decision by then-Comptroller Hevesi to the same effect, as well as a similar opinion by NYC Corporation Counsel Cardozo in a letter to Mayor Bloomberg.  As did the Martinez court, she concludes that the Hernandez ruling, by stating that the legislature could extend marriage rights to same-sex couples, was indicating that recognition of same-sex marriages would not be against public policy in New York.  "Accordingly, defendant's motion to dismiss this divorce action on the grounds that the parties' Canadian marriage is void under New York law is denied."

Next she devotes considerable analysis to the question whether Beth's motion for declaration of her parental rights can be entertained by the court, in light of the fact that Beth has not legally adopted the two children but has served as their mother in fact.  In particular, she notes the developing use of estoppel doctrine by courts straining to serve the best interest of children despite the formal barrier erected by the Court of Appeals in 1991 in Alison D. v. Virginia M., 77 NY2d 651, denying a co-parent's custody claim on grounds that she was a "legal stranger" to the children she had been helping to raise for several years, and suggests that some recent developments at the appellate level leave an opening for the court to entertain Beth's motion.  In reliance on those cases, "this court concludes that the Facts here warrant granting Plaintiff's motion to enable this court to determine whether the best interests of the children warrant granting custodial rights to Plaintiff.  Although Defendant did not allow the adoption of the children, she held out Plaintiff to the world, and most important, to the children, as their parent.  The children were given Plaintiff's last name.  The birth announcements presented Plaintiff as the parent of each child.  J.R. [the older child] was encouraged to call Plaintiff 'mom' and Plaintiff's relatives by familial titles.  The extended families of each party were encouraged to treat Plaintiff as a parent.  Defendant held out Plaintiff as a parent to the children's nanny, doctor and J.R.'s teachers and school administrators.  Defendant accepted health insurance and financial contributions from Plaintiff for the benefit of the children."

And, of course, there is the marriage.  "Although Defendant seeks to minimize the significance of the act of marriage, the law does not share her view.  Marriage is 'a status founded on contract and established by law.  It constitutes an institution involving the highest interests of society.  It is regulated and controlled by law based upon principles of public policy affecting the welfare of the people of the State.' Fearon v. Treanor, 272 NY 268, 272 (1936).  As a result of being married, Plaintiff may be constrained to provide support for the Defendant and Defendant would be a recipient of a portion of Plaintiff's estate.  These factors significantly affect the children's welfare.  Moreover, although people enter into marriages for many reasons, creating familial bonds is one of the most significant reasons, particularly for the benefit of their children.  The parties here were clearly committed to becoming married, having traveled twice to Canada and having obtained two marriage licenses.  It is noteworthy that the Defendant voluntarily entered into the marriage after her first child was born.  Furthermore, as Plaintiff argues, the artificial insemination during the marriage resulting in the birth of S.R. may require a finding that she is the legitimate child of both parents."

Justice Drager also notes that by age three a child "clearly identifies with parental figures" and so J.R. could be harmed by suddenly terminating his relationship with Beth, and it is "conceiveable" that young S.R. could be harmed as well.  And, of course, both children would suffer potential economic harm due to loss of support.

Justice Drager ordered that the parties appear in court on March 24 for a conference to address the custodial issues.

Justice Drager's ruling may provide the occasion for an appeal to the 1st Department, thus providing an opportunity for every department of the Appellate Division to weigh in on the same-sex marriage recognition issue before it is decided by the Court of Appeals.  Justice Drager's ruling falls within what may be a narrow window of opportunity for recognition of same-sex marriages under the precedent of Martinez, since it is possible that the Court of Appeals could grant review of Martinez and stay that ruling's effect until the issue is sorted out.  It is also possible that a contrary ruling by the 2nd or 3rd Departments may quickly put an end to the state-wide effect of Martinez before the Court of Appeals takes any action.  But it is well to remember that Martinez was a unanimous ruling by five western New York elected Supreme Court justices in what may be the most conservative of the four departments of the Appellate Division, so one hesitates to speculate about what the other departments may do.

As an entirely practical matter, of course, recognizing a same-sex marriage for the limited purpose of granting a divorce, dividing assets and making a custody ruling in the best interest of the children, presents different practical and political issues from recognizing a marriage for the purpose of on-going rights and benefits, as in the Martinez case, even if the same legal test of comity should theoretically be applied.  We have entered a very interesting period of judicial activity in New York now, as one of the few states without a Defense of Marriage Act, with an executive supportive of same-sex marriage, with a state legislature in which one house has voted favorably on a bill to open up marriage to include same-sex partners, and with two jurisdictions on our borders (Canada and Massachusetts) in which same-sex marriages are legally contracted.

Comments

[Daniel]

I married my same-sex partner June 28 05 in Canada, and, unfortunately, we may be splitting up. Since this is the case, I am very interested in the outcome of this case, as well as the impact it may have.

Thank you for posting this information.

[Erin]

I was married in canada to my same sex partner and we have since then split up and i am looking to get a divorce it would be helpful to know if i can legally do this