California Divorce and Family Law

Same-Sex Couples Face Another Growing Hurdle -- Divorce

Next week, same-sex couples across the country who want to marry will be welcomed in California. But what happens if they later want to divorce?

That is one of the many legal issues that could confront California newlyweds who return to home states where same-sex marriages are prohibited. Unlike a Massachusetts ruling a few years ago, a landmark court ruling last month allowing same-sex marriages in California will permit almost any out-of-state couples to wed there.

But that doesn't mean their lives after the wedding will be easy. Some gay and lesbian couples joined by marriage in Massachusetts or Canada, or under civil unions from, say, Vermont, contend with legal limbo in other states. Among the tricky issues, apart from divorce, that can make the honeymoon feel decidedly over are employee benefits, bankruptcy filings and inheritance rights.

John McCall Jr., a Dallas lawyer who represents gay and lesbian clients in property and custody disputes, says that thanks to the legal thicket same-sex couples can face, his clients "over and over again tell other couples considering marriage to run in the other direction."

Cassandra Ormiston and Margaret Chambers were married in Massachusetts in 2004 but tried, in vain, to divorce in Rhode Island, with the state's high court saying last year that the state defines marriage as the union of a man and a woman. Now, Ms. Ormiston is trying to establish residency in Massachusetts to divorce there.

That can add to an already difficult process. Joanna Grossman, a law professor at Hofstra University School of Law in New York who specializes in family law and sex discrimination, says she has been contacted by more than 50 people who entered Vermont civil unions and now want out. The problem, she tells them, is that you have to establish residency in the state to file for divorce.

To wind down a relationship, same-sex couples have to navigate a process that may force them to appear in three different courts, including a civil court that treats the separation as a business breakup. Says Mitchell Katine, an attorney who handles same-sex separations: "It's not fair to parties to have their relationship of 20 years treated like a breakup of two people who operated a Kinko's."

Health care and other benefits pose similar issues. In May, the Michigan Supreme Court ruled that public employers in the state can't offer health insurance to same-sex domestic partners, because of state law limiting marriage to one man and one woman. In New York last year, a state court ruled that a man couldn't recover workers' compensation death benefits after a partner, with whom he entered a Vermont civil union in 2000, was struck by a car and later died.

The law is far from settled. In February, a New York court ruled that a community college in the state had to recognize a Canadian same-sex marriage for purposes of awarding spousal health benefits. Following the decision, the New York governor's office in May ordered state agencies to recognize same-sex unions from out of state. Then a conservative religious organization sued, arguing that the governor overstepped his authority.

Another issue is health decisions. Texan Dennis Milam, who married his longtime partner last year in Canada, has legal papers authorizing him to act on his spouse's behalf. Still, Mr. Milam says he worries about emergencies. "What if something happens at 2 a.m. and you are upset and don't remember your papers?" he says.

Gay and lesbian advocacy groups, while hailing the California decision, fear the creation of "bad law," or setting unfavorable precedent, that might result if couples try to assert their new status elsewhere. The groups are expected to issue a joint statement Tuesday advising California newlyweds against filing suit in their home states. "We need to lay the groundwork by changing the climate -- convincing community leaders, moving public opinion -- before we rush into court," the statement is expected to say.

Still, a surge in litigation is likely, says Glen Lavy, a lawyer for a group that opposes gay marriage. "We are not encouraging people to bring these suits, but we are prepared to defend marriage wherever these suits occur," he said.

From the Wall Street Journal (subscription required)

California's top court overturns gay marriage ban

In a monumental victory for the gay rights movement, the California Supreme Court overturned a voter-approved ban on gay marriage Thursday in a ruling that would allow same-sex couples in the nation's biggest state to tie the knot.

Domestic partnerships are not a good enough substitute for marriage, the justices ruled 4-3 in striking down the ban.

Outside the courthouse, gay marriage supporters cried and cheered as the news spread.

Jeanie Rizzo, one of the plaintiffs, called Pali Cooper, her partner of 19 years, and asked, "Pali, will you marry me?"

"This is a very historic day. This is just such freedom for us," Rizzo said. "This is a message that says all of us are entitled to human dignity."

In the Castro, historically a center of the gay community in San Francisco, Tim Oviatt started crying while watching the news on TV.

"I've been waiting for this all my life," he said. "This is a life-affirming moment."

The city of San Francisco, two dozen gay and lesbian couples and gay rights groups sued in March 2004 after the court halted the monthlong wedding march that took place when Mayor Gavin Newsom opened the doors of City Hall to same-sex marriages.

"Today the California Supreme Court took a giant leap to ensure that everybody — not just in the state of California, but throughout the country — will have equal treatment under the law," said City Attorney Dennis Herrera, who argued the case for San Francisco.

The challenge for gay rights advocates, however, is not over.

A coalition of religious and social conservative groups is attempting to put a measure on the November ballot that would enshrine laws banning gay marriage in the state constitution.

The Secretary of State is expected to rule by the end of June whether the sponsors gathered enough signatures to qualify the marriage amendment, similar to ones enacted in 26 other states.

If voters pass the measure in November, it would trump the court's decision.

California already offers same-sex couples who register as domestic partners the same legal rights and responsibilities as married spouses, including the right to divorce and to sue for child support.

But, "Our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation," Chief Justice Ron George wrote for the court's majority, which also included Justices Joyce Kennard, Kathryn Werdegar and Carlos Moreno.

In a dissenting opinion, Justice Marvin Baxter agreed with many arguments of the majority but said the court overstepped its authority. Changes to marriage laws should be decided by the voters, Baxter wrote. Justices Ming Chin and Carol Corrigan also dissented.

The conservative Alliance Defense Fund says it plans to ask the justices for a stay of their decision until after the fall election, said Glen Lavey, senior counsel for the group.

Gov. Arnold Schwarzenegger, who has twice vetoed legislation that would've granted marriage rights to same-sex couples, said in a news release that he respected the court's decision and "will not support an amendment to the constitution that would overturn this state Supreme Court ruling."

The last time California voters were asked to express their views on gay marriage at the ballot box was in 2000, the year after the Legislature enacted the first of a series of laws awarding spousal rights to domestic partners.

Proposition 22, which strengthened the state's 1978 one-man, one-woman marriage law with the words "Only marriage between a man and a woman is valid or recognized in California," passed with 61 percent of the vote.

The Supreme Court struck down both statutes with its sweeping opinion Thursday.

Lawyers for the gay couples had asked the court to overturn the laws as an unconstitutional civil rights violation that domestic partnerships cannot repair. A trial court judge in San Francisco agreed with gay rights advocates and voided the state's marriage laws in April 2005. A midlevel appeals court overturned his decision in October 2006.

From Yahoo News.

Here is the Court's opinion.

In First, N.Y. Judge Allows Gay Divorce

Trial Court Ruling Appears to Be State's First Allowing Divorce From Same-Sex Marriage

In what appears to be the first ruling of its kind, a New York judge will allow a lesbian couple who married in Canada to sue for divorce.

Though New York does not allow same-sex marriages, a state trial court judge refused to dismiss a divorce and child custody suit brought by a woman, identified only as Beth R., against her former partner Donna M.

Donna M. had argued that her 2004 marriage should be invalid in New York because the state doesn't allow same-sex marriage, but Supreme Court Justice Laura Drager found that the out-of-state marriage could still be recognized under New York law. Her ruling appears to be the first divorce case in New York from a same-sex marriage.

"What we're seeing now is a judicial battle that's going to be waged in [the] next few months," said Arthur Leonard, who teaches a class on sexual orientation and the law at New York Law School. "People sometimes forget that divorce is part of marriage. People need a judicial process to untangle a relationship."

The state's highest court last year declined to create a constitutional right to same-sex marriages, saying it was an issue for the legislature to decide. That case did not address out-of-state same-sex marriages.

New York is one of the few states that does not address same-sex marriages. At least 41 states have laws defining marriage as between a man and a woman, according to the National Conference of State Legislatures; those laws allow states to reject same-sex marriages from other states. In December, the Rhode Island Supreme Court ruled that the state's family courts can't grant divorces to same-sex couples.

In her ruling Monday, Drager said New York will not recognize an out-of-state marriage only if it is prohibited by a state law or if it is "abhorrent to New York public policy." She said only polygamy and incest have been found to be abhorrent.

Beth R. and Donna M., described as in their 40s and working in the media industry, were married in Toronto in 2004. They have two daughters, both born to Donna M.

Read more at ABC News.

COURT PLANS HEARING ON GAY MARRIAGE

The pros and cons of same-sex marriage will get an airing here March 4 in oral arguments before the California Supreme Court, the court announced Wednesday.
     In dispute is the constitutionality of the state's marriage statutes, which currently limit marriage to couples of the opposite sex.
     The contentious issue, launched in February 2004 when San Francisco Mayor Gavin Newsom began furnishing marriage licenses to gay and lesbian couples, reached the high court in 2006. In re Marriage Cases, S147999.
     Newsom's act ignited an international firestorm of outrage and praise that elevated the gay rights movement to the top of the American agenda.

     Divisive Topic
     It remains a divisive topic. Newsom said Tuesday that as the fallout from the marriage license tumult was peaking four years ago, current Democratic presidential candidate Barack Obama refused to be photographed with him at a fundraiser in San Francisco. Obama's campaign manager, an openly gay man, denied the claim.
     Cultural conservatives' counsel and lawyers for the state will face off with the San Francisco city attorney and lawyers for same-sex couples who sued to validate the licenses they received.
     High court briefing concluded in August 2007, after the court asked the contending attorneys for more information on the distinction between marriage and domestic partnership. The justices announced that they will devote an unusual three hours to hearing the lawyers present their case.

     Three Issues
     Three issues are key for the court: whether the state's exclusion of same-sex marriage violates the equal protection rights of lesbians and gay men; whether that exclusion violates the right to personal autonomy protected by the California constitution's privacy clause; and whether the exclusion violates the fundamental right to marry protected by the state constitution's liberty clause.
     The most important differences between domestic partnerships and marriage are cultural, according to attorney Kate Kendall of the National Center for Lesbian Rights.
     "Mothers and fathers do not ever say they want to dance at their daughter's domestic-partnership registration ceremony," Kendall said last year. "Marriage is imbued with a very inspiring, intense and significant cultural acceptance that for many couples, long after the day happens, the fact of that ceremony is burned into their memory."
     Mathew D. Staver, the lead attorney for Liberty Counsel, a Florida traditional-family lobby, countered, "Those who are seeking same-sex marriage are not doing so for the benefits but for the state's seal of approval that comes with marriage. The state does not have to put a stamp of approval on any relationship."
     The Supreme Court granted same-sex marriage proponents' petition for review after a divided panel of the 1st District Court of Appeal voted 2-1 that only the Legislature can define marriage.
     The appellate court reversed San Francisco Superior Court Judge Richard Kramer, who upheld Newsom's right to issue the licenses.

From the Daily Journal. (Registration Required)

Hatip: Candace.

R.I. court won't let gay couple divorce

Ruling cites 1961 law, deals setback to pair married in Mass.

In a split decision, Rhode Island's top court said yesterday that it will not allow a lesbian couple who married in Massachusetts to get a divorce in the Ocean State.

The 3-to-2 ruling was viewed by advocates of gay marriage as a setback and by those who oppose the recognition of same-sex unions as an act of wisdom.

The court concluded that a key 1961 Rhode Island law defines marriage as an legal union between a man and a woman, not same-sex couples. Unless and until the Legislature changes the wording, same-sex couples married in Massachusetts cannot get divorced in Rhode Island family courts, it said.

Cassandra Ormiston, who married Margaret Chambers in Fall River in 2004 after Massachusetts became the first state in the country to legalize same-sex marriages, denounced the ruling, saying it discriminates against same-sex couples.

"There have been people throughout history who have been discriminated against," said Ormiston, 60. "And they have fought the good fight and prevailed. It will be the case with my minority as well."

"It won't stand," she said.

Louis Pulner, the lawyer for Chambers, said his 70-year-old client has stayed out of public view during the high-profile litigation triggered by her failed marriage.

"They are in legal limbo," Pulner said of the two women. "We simply asked [the court] to allow people to get divorced if they had a valid marriage from another jurisdiction."

According to Ormiston, the couple lived together for a decade  before they got married. The marriage collapsed two years later.

In a statement, Governor Donald L. Carcieri of Rhode Island and at least one group that opposes gay marriage praised the ruling.

"I believe this is the appropriate result based on Rhode Island law," Carcieri said. "It has always been clear to me that Rhode Island law was designed to permit marriage, and therefore divorce, only between a man and a woman."

The lawyer for the Alliance Defense Fund, a Christian-based group, said the ruling affirms that marriage is between a man and woman and anything else is "counterfeit."

"Not only is today's ruling a victory for marriage, it's also a tremendous step forward against judicial activism," Austin R. Nimocks, a lawyer for the Arizona group, said in a statement.

But Rhode Island's attorney general, Patrick Lynch, and the Boston group Gay & Lesbian Advocates & Defenders criticized the ruling. "It is unfair to the couple in question and other couples similarly situated," because they cannot legally end their marriages, Lynch said in the statement. He said the ruling does not affect the status of same-sex marriages of Rhode Island couples not seeking divorce.

Karen Loewy, a staff lawyer with GLAD, which filed an amicus brief siding with the couple, said she was "incredibly distressed" for them. Short of persuading the Rhode Island General Assembly to legalize gay marriage, she said, the only certain way the couple can get a divorce is for one of the spouses to move to Massachusetts and establish legal residency.

"It's the one guaranteed place they could get a divorce," she said.

The court's majority said the Legislature, not the courts, should change state law. But dissenters said Rhode Island already handles divorces for couples married elsewhere and should do the same for the couple.

In a telephone interview, Ormiston rejected the idea of moving to Massachusetts for one year so she could be divorced in the Bay State.

"I simply will not support my own discrimination," she said. "The courts have denied me my civil rights. But we will prevail because this is the American justice system."

From Boston.com.

California Governor Schwarzenegger Vetoes Gay Marriage Bill

Governor Arnold Schwarzenegger vetoed a gay marriage bill Friday, saying voters and the state Supreme Court, not lawmakers, should decide the issue. According to the New York Times, "The Republican governor turned down a measure by Assemblyman Mark Leno that would have defined marriage as a union between two people, not just a man and a woman. Schwarzenegger vetoed a similar bill from Leno, a San Francisco Democrat, in 2005 and has said he would veto all such bills. The California Supreme Court is likely to rule next year on whether the state's voter-approved ban on gay marriage violates the constitution. Schwarzenegger said in his veto message that Californians ''should not be discriminated against based upon their sexual orientation.'' He said he supports state laws that give domestic partners many of the rights and responsibilities of marriage."

From Family Law Prof Blog.