Same-sex marriage has been a highly publicized, widely debated, hot topic recently in Nassau and Suffolk County court on Long Island, NY and throughout the United States. The Supreme Court decided to strike down a portion of the Defense of Marriage Act (DOMA), and in effect, upheld a lower court decision requiring California to recognize same sex marriages. While marriage itself is at the forefront of many individuals’ minds, there is an aspect of same sex marriage that is often overlooked: divorce. If a gay marriage is not legally recognized in a state, a same-sex couple has no access to the rights afforded in a legal divorce proceeding.
Why Is Divorce Important for Same Sex Couples?
But why is access to divorce so important for same sex couples? Divorce proceedings provide structure in a situation that can be extremely difficult, unpredictable, and often, problematic. A legal divorce provides procedures and structure for the distribution of property, the awarding of spousal support, and resolution of child custody and child support disputes. These practices and procedures come from statutes and case law developed over time. Judges do have some discretion in determining some divorce issues, especially child custody issues, but for the most part, the process is orderly and consistent.
Divorce Provides Closure & Protection for Each Spouse
Further, a legal divorce provides some finality for couples; it is a way to truly end a tumultuous and unproductive relationship. The divorce process also mitigates financial problems for both spouses. It is designed to protect the spouse that earns less money, especially if the spouse has contributed greatly to a marriage in a less than tangible way. For example, a mother who quits her job to stay home and take care of her children to allow for her husband to work full time, is making a sacrifice that isn’t easily quantifiable. A legal divorce provides a method of quantifying that contribution to the family. The structure of divorce proceedings may allow a mother to receive support, because she is the financially weaker spouse.
Supreme Court Decision Does Not Protect All Same-Sex Couples in All States
Using these criteria, it is simple to see the advantages of access to divorce for a couple seeking to end their relationship. Unfortunately, even with the Supreme Court’s recent decisions, it may be difficult for some same-sex couples to become divorced. The recent Supreme Court decision did not make same-sex marriage legal in all states, the result of which is that there are now “Recognition”, and “Non-recognition” states. These terms mean exactly what they seem: a state that recognizes same-sex marriage is a Recognition state, and a state that doesn’t recognize same-sex marriage is a Non-recognition state. But this is not the only distinction between states. For example, some states will only recognize same-sex marriages if couples were not previously married in another state. This is just one example of a multitude of technicalities that vary in same-sex marriage laws from state to state. All these technicalities result in a situation where same-sex couples cannot be legally married in a state that does not recognize same-sex marriages and therefore prohibits the couple from the rights and protections of a legal divorce proceeding.
Lack of Uniformity Between States Adds Complexity, Cost to Same Sex Marriage Divorce
This creates a problem due to a lack of uniformity in predicting whether a couple can legally divorce. The law is very confusing, and difficult to predict. This difference between states causes immense strain on same-sex couples, and additional burdens in determining whether they can be legally divorced or not. In the example above, a state that has a law that only recognizes same-sex marriage if it is the couple’s first, would therefore require the couple to provide a full relationship history to the court to determine the validity of a marriage. The couple may even be required to provide relationship history further back from previous relationships with other parties. This added complexity will likely result in higher legal fees for same-sex couples seeking marriage or divorce protections.
Non-Conformity Among Government Agencies Adds Complexity & Confusion
Another complex issue is the fact that different government agencies and departments have different ways of determining the validity of a same-sex marriage. For example, the Social Security Administration determines validity of marriage based on the residency of the married couple, while the Department of Homeland Security determines the validity of marriage based on the state where it occurred, or the state of celebration. Therefore, if a couple was married in a non-recognition state, but currently resides in a recognition state, the Social Security Administration would view the couple’s marriage as valid, while the Department of Homeland Security would view the couple’s marriage as invalid. The inconsistencies in the law make it confusing for couples to know what rights and obligations each spouse has in a divorce proceeding, if they can even access divorce rights in the first place.
Steps for Same Sex Couples to Take to Protect Their Rights
In light of these concerns, there are some steps same-sex couples can take to make the dissolution of their relationship more concrete. Same-sex couples should create a pre-marital or pre-cohabitation agreement. This agreement will provide ease and clarity in the event that the couple decides to split, regardless of whether that couple can access a legal divorce. These agreements will provide structure that can spare them the emotional and legal costs of divorce. Even more-importantly, these agreements can make decisions that courts will not, should the couple’s marriage is deemed invalid for various reasons. Although divorce is a desirable, structured way to end a relationship, these agreements create a structured alternative in case divorce is not an option for the couple. Same-sex couples may also choose to use an alternative dispute resolution technique, like Divorce Mediation which can provide structured and legal documents that outline each parties’ rights and responsibilities outside of the structure of a legal divorce. Through divorce mediation, a couple can negotiate and settle their dispute, without ever going into court.
Questions About Same Sex Marriage & Divorce in Nassau & Suffolk on Long Island, NY?
The divorce law firm of Robert E. Hornberger, Esq., P.C. remains vigilant in its efforts to know and understand every aspect and new development in the field of divorce for both same-sex and opposing-sex couples. Divorce is our business and protecting the rights of couples is our responsibility and our pleasure. If you have questions about your rights and responsibilities in your divorce, please give us a call at 631-923-1910 or fill out the short form on this page for a free one-on-one consultation where we can discuss your options and determine a course of action that will be best for you and your family.