Do people realize how complicated life has become for some same-sex couples caught up in the marriage wars?

Last night I received an email from a colleague seeking my advice.  Here's what the colleague wrote:

 

Gay friends of mine, together for 18 years, were married last August in California.  Most of the assets are obviously premarital.  They’re now splitting up (long story) and want some guidance on a settlement agreement.  I would have gladly helped out if they weren’t officially married, but they are and they now want a settlement agreement under New York law.  I’m not sure how this all plays out under New York law, and whether they need an official court-ordered divorce from CA?  Any ideas or suggestions?

 

Here's what I wrote in response:

 

This is incredibly complicated, because the status of their marriage is now in question.  As a result of Proposition 8, it is possible that they are not validly married at present.  We won't know for sure until the California Supreme Court issues its decision on the legal challenge to Prop 8, sometime between now and June 3.  If it turns out that the marriage is valid and recognized in California, then it would be recognized in New York for purposes of our divorce law here.  In fact, there is even an argument, based on a literal reading of Prop 8, that it doesn't matter what the California Supreme Court decides -- it will be valid and recognized in NY, at least for now (pending the NY Court of Appeals' hearing and decision later this year in two cases on which they've granted review concerning marriage recognition).

So, in some ways, the short answer is that there is no short answer.  The status of their relationship is in suspended animation in some respects.  If they are now living in NY, they are for the moment possibly (but not certainly) legally married, and would need a divorce to terminate the relationship. If they are NY residents -- which I'm assuming from your question -- they could get the divorce here -- at least, they could probably get the divorce here.  We have a few trial court rulings over the past year holding that a same-sex couple validly married out of state can get a divorce in New York.

That's the best I can do for now, until we have definite rulings from California Supreme Court and NY Court of Appeals on pending cases.  If they want to be certainly disentangled from any legal marriage, they should probably file for divorce in New York immediately and hope to get it handled expeditiously - but a NY court might insist on waiting at least long enough for the California Supreme Court opinion.  Of course, if they wait and it turns out they are not legally married, then there is no need for them to get divorced!

 

 

 

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So I'm wondering whether my advice was totally accurate?  At any rate, if they are NY residents, I assume they can't get a divorce in California.  And I'm wondering, in light of Proposition 8, whether any California resident same-sex couple married in California between June and November last year could now file for a divorce in Califronia?  Since we won't know whether their marriage is presently valid until the California Supreme Court's pending ruling on the effect of Prop 8, it could be that California courts would not entertain such petitions.

 

One of the problems imposed on same-sex couples because of the Defense of Marriage Act and the widespread refusal of other states to recognize same-sex marriages contracted in those states that allow them (or contracted in other countries, such as Canada, where hundreds of US-resident same-sex couples have wed since 2003) is the inability to get divorced.  Look at the Rhode Island situation, where a lesbian couple who married in Massachusetts in 2004 but lived in Providence discovered that the R.I. courts refused to grant them a divorce and, since neither of them is a Massachusetts resident, they can't get a divorce there, either. 

 

There is a certain irony here: this morning's NY Law Journal carries an item from the Associated Press about how the new Archbishop of NY, Timothy Dolan, is set to lead the church in opposing the same-sex marriage bill that Governor Paterson has announced he will introduce in the legislature today.  The Catholic Church, of course, opposes divorce in all circumstances.  So Archbishop Dolan would undoubtedly -- from one doctrinal viewpoint -- think that my colleague's friends should not be able to get a divorce anywhere....  But, hold on...  he undoubtedly would also say that they shouldn't be allowed to marry anywhere, and that if any jurisdiction allowed them to marry, no other jurisdiction should recognize that marriage.   One can really go around in logical circles trying to figure all of this out.

 

Comments

[michael]

Art

I think you are correct in your assessment. They should be able to get a divorce here but might have to wait until the court rules.