Divorce Equality

Jesse Green examines the trials and tribulations of gay divorce:

It’s not a subject that marriage-equality groups tend to trumpet on their websites, but gay couples are at the start of a divorce boom. One reason is obvious: More couples are eligible. According to a report by UCLA’s Williams Institute, nearly 50,000 of the approximately 640,000 gay couples in the U.S. in 2011 were married. (Another 100,000 were in other kinds of legal relationships, such as domestic partnerships.) The marriage rate, in states that allowed it, was quickly rising toward that of heterosexual couples: In Massachusetts as of that year, 68 percent of gay couples were married, compared with 91 percent of heterosexual couples.

Another reason for the coming boom is that while first-wave gay marriages have proved more durable than straight ones (according to the Williams Institute, about one percent of gay marriages were dissolving each year, compared with 2 percent for different-sex couples), that’s not expected to last. Most lawyers I spoke to assume that the gap will soon vanish, once the backlog of long-term and presumably more stable gay couples have married, leaving the field to the young and impulsive.

Susan Sommer, director of constitutional litigation for Lambda Legal, outlines some of the reasons why gay divorce is so necessary on a practical level:

“First of all, you can’t enter into a new marriage, or for that matter a new civil union or domestic partnership. So you can commit bigamy and might be subject to criminal prosecution.” Such “walking bigamists,” accustomed to the more casual ending of past gay relationships, may not even realize they need a divorce. “Or let’s say you and your spouse live in Virginia but got married in New York. You split up but don’t get divorced, because you can’t. One of you steps foot in D.C. because you commute there for work. While you’re in D.C. you are married to that other person even if you haven’t spoken in years. And let’s say you’re in an accident that doesn’t allow you to make end-of-life decisions; that spouse is likely the one who has the right to make decisions for you.

“Or say you never bothered to make wills, and you die. It is that spouse who inherits your property. And if you have made a will, giving your estate to your new partner, the old one is probably entitled to the spousal election, a percentage of the estate that has to go to the spouse regardless, because the law in general says you can’t entirely disinherit your spouse.

“And here’s another: There’s something called the marital presumption. So if you are married to your same-sex spouse but have moved on without getting a divorce, and have a child using an anonymous donor with your new partner, it’s your old spouse who is the presumptive parent of that child. It’s a mess!”