Divorce complications arise among states for same-sex couples

 Editor - Now that more and more states have given gays the right to marry, and the Supreme Court has seemed to support that, what will be the issues surrounding divorce?  And will the divorce rate among gays mirror that of straights or will the relationships be more permanent due to the easing of marriage laws and opportunities.

Indeed problems have already arisen. Given the differences in the laws referencing gay marriage, it is now occurring that some gay couples, just like straight ones, get divorced but in this case try to do this in states where they could not officially be married.  What happens under these circumstances.

The number of states that permit gay marriage is growing. These jurisdictions logically also grant divorces to homosexual couples who are legally married. However, the legal status of married same-sex couples is not recognized in many other states that define marriage as a union existing solely between a man and a woman.

Texas is one of these states with this type of dilemma, as it does not recognize gay marriage, and doesn't allow gay marriage to be performed.  But it is finding the reality that some homosexual couples legally married in Connecticut, Vermont, Massachusetts, Iowa, New Hampshire or Washington, D.C. and other areas may move to Texas to seek a divorce.

A few years ago two lower courts have ruled that these couples may obtain divorces in Texas because of its constitutional obligations of equal protection under the law, and full-faith-and-credit recognition of other states' legal acts. However, the Texas Attorney General tried to halt the divorces.  He did that  by insisting that homosexual marriages legally recognized in other states should be voided under Texas law.

What are the arguments being used against homosexual divorce in Texas?

The Texas Attorney General argued that avoidance is the proper way to terminate "any purported marriage that is not legally valid in the state of Texas, including the same-sex relationships that may be considered marriages in other states." He insisted that because Texas defines marriage as a union between a man and a woman, the state cannot dissolve a same-sex marriage that legally does not even exist in Texas. Thus, in granting a same-sex divorce, Texas would be recognizing same-sex marriage, which is against Texas law.

Conversely what are the arguments in favor of allowing divorce in Texas.  Those who maintain divorce should be allowed in Texas outline the fact that divorce is a complex process and involves several elements beyond simply severing the legal ties between two people. Issues of spousal support, asset division, child support and child custody are governed by the family law process of divorce. By not allowing married couples to divorce, the equal parenting rights of both parties may be compromised in custody proceedings. Bob Luther, an attorney in some of the cases, insisted at the time that it is vital that a homosexual couple be given equal access to the legal framework and judicial oversight that all other couples are subject to in child custody cases, for the benefit of both the parents and the children in question.

The financial settlement of the couple may also be negatively affected. Should the Attorney General succeed in voiding these marriages, the couples will not be allowed to use legal property settlements that heterosexual couples are entitled to enter into under the law. Another lawyer representing one of the divorcing homosexual couples insists that by forcing same-sex couples to void their marriages, rather than using the established divorce process, Texas would be creating a separate class for homosexuals in violation of equal protection. They are, he maintains, entitled to divorce because they obtained legally valid marriages.

These issues are not just those of Texas, although the patterns of Texas history tells us something. Texas has recognized marriages that were legalized out-of-state. Generally, all states recognize out-of-state marriages under the doctrine of Full Faith and Credit. States generally grant divorces to those who wed out of state. However, states are divided on the matter of recognizing out-of-state homosexual marriages and grant homosexual divorces. At one time Pennsylvania judge refused to divorce a lesbian couple who had married in Massachusetts, and Rhode Island therefore similarly disallowed homosexual divorce. New York, on the other hand,  grants divorces to homosexual couples who have been legally wed elsewhere.

The process of working out the how-tos in divorce cases between same-sex couples has been shown to take time and can be complicated.

So long as there is no national law on same-sex marriage, and the several states each impose its own according to what it deems appropriate and/or the will of the people, most legal experts tell us the process of divorce will remain complicated.

But then marriage and divorce, as we know, are complicated for any couple, same-sex or heterosexual. It will likely take years to even out the issues. In the meantime, homosexual couples will be forced to remain in their marriages, obtain residency in states that grant homosexual divorce or file for divorce in those states not yet permitting same-sex marriage with the uncertainty of whether the divorce decree will ultimately be upheld as legal. 

Should same-sex couples have equal laws applied on adultery?

by GHN Editor - While
the states are examining same-sex marriages, and a court in California
overturned a voter-driven bill to outlaw them, should these couples be
held to the same standards on adultery?

Peter Nicolas, Professor

at the University of Washington School of Law, has a paper written on
this very subject and has posted "The Lavendar Letter: Applying the Law
of Adultery to Same-Sex Couples and Same-Sex Conduct.  He tells fellow
lawyers on a blog
that his goal is to examine the question of adultery and whether it
should apply to same-sex couples.  He reviews his paper on the blog.

It
turns out there have been decisions that these laws of adultery do not
apply to same-sex couples.  So Nicolas looks at four different contexts
of adultery prosecutions that include fault-based divorce actions,
civil tort actions related to when another person interferes with a
relationship and murder cases based upon premises brought up by defense
on the issue of adultery.

Nicolas maintains that the decisions of the court made that same-sex conduct is not adultery do that based on out-dated understandings
about the nature of relationships.  They are based on the traditional
marriage concept between a man and a woman.  They are also based on
old-fashioned ideas that treat sexual indiscretions of men and women
differently.

These concepts of applying adultery concepts equally
to gay couples might produce a better equalization of the way men and
women are treated when it comes to the courts.

In other words, by
gays getting equal rights, and equal responsibilities, the cause of
women may be aided as well.  It can serve the cause of women in securing
their right to be treated with justice outside of gender in the courts
is Nicolas premise, and likely to be discussed within the intricacies of
court decisions.

Experts say final decision on same-sex marriage could take years

[caption id="attachment_11720" align="alignleft" width="234" caption="gay marriage"][/caption]

Carol Forsloff - A court overturns a voter-decided initiative to prohibit same-sex
marriage, and while many folks say this will influence other states,
real change will take years some experts say.

U.S. District Chief Judge Vaughn R. Walker ruled Aug. 4 that Prop 8,

California’s ban on same-sex marriage, is unconstitutional.   But
despite celebrations on the one hand, and an appel on the other, it is
likely to take years for a final decision on the matter, according to
Susan Frelich Appleton, JD, the Lemma Barkeloo and Phoebe Couzins
Professor of Law at Washington University in St. Louis.

There
are hoops to jump in the coming contests including a round of arguments
before the U.S. Court of Appeals for the 9th Circuit, then the Supreme
Court.  Both sides have promised to take Perry v. Schwarzenegger to the
nation's top judges.

But
before the U.S. Supreme Court agrees to examine the constitutionality
of bans on same-sex marriage until the issue has been decided by one or
more additional federal courts of law, which may produce different
decisions according to Appleton.

“Sometimes
a division among the courts will occur, and such splits make an issue
more likely to be heard by the U.S. Supreme Court,” Appleton says.

Still
decisions could become swifter but the court taking the case
immediately after the present ruling.  But the decision might very well
take time because the justices might consider it important to wait as
Gregory Magarian, JD, Professor of Law at WUSTL, explains.

“If
we assume that the justices know their minds on this issue, then the
justices who believe they will prevail may vote to take the case in
order to resolve the issue now, while the numbers favor their preferred
outcome,” Magarian says. “Supreme Court rules require only four votes to
take a case.”

The issue is certainly important for the U.S. Supreme Court’s attention, Magarian says.

Opponents
say of this week's ruling that it amounts to "judicial activism"
because it overturns an action the voters decided.  Magarian points out
the error of this argument by comparing the voters' opposition to
same-sex marriage to the white majority "democratically" keeping black
children in segregated schools, and the male majority "democratically"
denying women equal treatment under the law.

“Often,
the people 'democratically' deny dissidents and rabble-rousers the
right to express themselves,” Magarian says. “In all of those
circumstances, we welcome the courts' intervention — at least in
hindsight. “

“One
way to analyze Proposition 8 treats it as sexual-orientation
discrimination; another way considers it as gender discrimination,"
Appleton says. "Under Proposition 8, a man can marry only a woman but
not a man, for example, so access to marriage turns on the combined
genders of the would-be spouses.

"Judge
Walker’s approach promotes marriage equality and equality in marriage,
for all women and men, of any sexual orientation,” she says.

Proposition
8 is only 14 words long: “Only marriage between a man and a woman is
valid or recognized in California.”  Those 14 words, however, are
controversial.

Lawyers
looking at Walker’s 138-page ruling say it provides a comprehensive
look at the federal constitutional issues involved, and is sure to be
cited in legal cases to come that even go beyond the 9th Circuit.

“Judge
Walker’s thorough review of the evidence and meticulous findings of
fact leave Proposition 8 without a constitutionally permissible or
legally justifiable foundation,” Appleton says.

Appleton
is a nationally known expert on family law, and has written extensively
about non-traditional families. Magarian has a primary focus on
constitutional law in his research and teaching .