Patchy laws complicate realities of gay divorce – Written by Nicole C. Brambila
Greg and John Rodriguez said “I do” in 2008 in matching white tuxedos before their two young sons and 200 guests — some who flew in from Singapore and London.
Palm Springs Mayor Steve Pougnet officiated the $60,000 ceremony.
“A lot of people cried” Greg Rodriguez said. “We both cried.”
They were among 18,000 gay couples who raced to the altar in the four months between the state Supreme Court striking down a same-sex marriage ban and California voters approving a new one.
“We’ve been denied marriage for so long that you have a lot of people rushing into it,” John Rodriguez said. “I kind of viewed it that we’d be together forever.”
Eight months later, the couple — who had been together for 14 years — separated.
The divorce was final in March 2010.
“We kind of grew apart,” Greg Rodriguez said. “That happens to a lot of people.”
Divorce isn’t the happy topic same-sex marriage advocates want to broach as they work to legalize such marriages across the country.
But legal experts foresee the fallout from child custody and property disputes among gay couples will compel courts to address gay unions — including in states that don’t allow same-sex marriage.
“A lot of it is going to be really messy,” said Douglas Nejaime, a law professor at Loyola Law School in Los Angeles. “The realities of these families are going to be something the courts can’t ignore.”
The biggest problem: the federal and state courts are operating on different tracks, Nejaime said.
Heterosexual marriages are legal in every state, of course, and any state court can grant a divorce.
But same-sex marriage isn’t legal or recognized in 29 states. So for example, a court in Texas, which does not recognize same-sex unions, will not grant a divorce to gay couples if they move to Texas, even though they were legally married in another state.
The reason is the Defense of Marriage Act, or DOMA, signed by President Bill Clinton in 1996.
It defines marriage for federal purposes as between a man and woman. The law doesn’t outright ban same-sex unions, but neither does it recognize them nor require states to do so.
The result: a legal patchwork for same-sex couples and their families.
Gay couples in legally recognized relationships — civil unions, domestic partnerships or marriage — face unique challenges when those relationships dissolve.
They include:
Not being able to get a divorce when one or both move to a state that doesn’t recognize same-sex marriage. Absent moving back to a state that recognizes gay marriage and divorce, the couple remains in legal limbo.
In cases where alimony is ordered, the payer does not get to deduct spousal support like in a heterosexual divorce, and is taxed in a higher tax bracket.
Parents separated from their children by courts that don’t recognize the parental rights of both.
The latter is what happened in the landmark custody battle between Janet Jenkins and Lisa Miller, who dissolved their Vermont civil union in 2003.
The couple filed for divorce in Vermont and a court ordered visitation to Jenkins.
But Miller absconded to Virginia with the couple’s young daughter. Virginia does not recognize same-sex marriages.
The bitter custody fight wound through both state courts until the Virginia Supreme Court ruled the state must honor the Vermont visitation order.
But not before Miller fled to Nicaragua with their daughter.
It is cases precisely like this, legal experts and attorneys say, that will press the issue.
“There’s a real problem here,” said Andrew M. Koppelman, a Northwestern University School of Law professor and author of “Same Sex, Different States: When Same-Sex Marriages Cross State Lines.”
“You can’t just pretend these legal relationships don’t exist.”
The issue has forced at least one state with a gay marriage ban to recognize same-sex relationships.
Last month, the Wyoming Supreme Court ruled — for the purposes of divorce only — it would recognize same-sex unions.
Mathew Staver, founder of Liberty Counsel, which supported California’s same-sex marriage ban, said he doubts that more will jump on the bandwagon, dissolving something they don’t recognize.But he also said gay divorce has become a legal headache not likely to go away.
“It really does create a legal quagmire,” he said. “I’m sure this issue will be pressed further with a higher percentage of people getting divorced.”
Shannon Minter, legal director for the National Center for Lesbian Rights, said the issue will advance divorce rights for gay couples.
“Many family law judges are seeing same-sex couples before them for the first time,” he said. “The ultimate impact of those cases will be transformative in its own way, as courts and the broader public see that married same-sex couples and their children exist and that they struggle with the same issues as heterosexual couples when their relationships end.”
Same-sex divorce is not new.
Massachusetts issued its first divorce within seven months of legalizing same-sex marriage in 2004.
But as more states — New York most recently — allow gays to marry, an inevitable number of divorces will follow.
A 2008 study by the UCLA Williams Institute shows same-sex couples dissolve their legal ties in similar numbers as opposite-sex couples.
Researchers note they’re surprised the numbers are not higher, given stigmatism and lack of support.
“Same-sex couples have stressors that opposite-sex couples don’t,” said Gary Gates, a Williams Institute researcher. “I don’t think that we should assume just because a state allows someone to get married that all the social stigma goes away.”
However, concrete statistics are scarce.
For example, the Riverside County clerk’s office, which initially tracked same-sex marriages when they started in 2008, stopped doing it out of concerns it “could be seen as discriminatory,” said spokeswoman Michele Martinez-Barrera. Riverside Superior Court also does not have statistics on gay divorce.
U.S. Census data released last month shows same-sex couples account for about 6 percent of all Coachella Valley couples — higher than the county (2 percent) and state (1.8 percent).
Half of the area’s same-sex couples live in Palm Springs.
For Greg Rodriguez, the bright spot in the painful decision to divorce is that, despite Proposition 8, California recognized their relationship and divorce.
He is a stay-at-home dad to their adopted sons, Joshua and Zachary, now 14 years old. Zachary has autism and cerebral palsy.
The Palm Springs man receives child support from John Rodriguez, a software company executive who now lives in Seattle.
“Divorce can be nasty,” Greg Rodriguez said. “There’s no reason why it has to be nasty for the kids.”
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