Sunday, July 7, 2013

Overwhelming Irony; Legal Gay Divorce

When it comes to getting a legal gay divorce, there are so many new issues popping up, and it gets so complicated, I'm not going to even try to grasp all the issues in one small post. One thing is certain right now: if you don't live in a state where gay marriage is legal and you marry in a state where it is legal things can get complicated if you ever decide to divorce. If this article is correct, there could be a few serious ramifications.

The article from The Washington Post mentions a few interesting points that I didn't know (or understand). Tony and I are still trying to figure out how the recent SCOTUS ruling is going to relate to us because we live in the State of PA. Our attorney is gay, and he practices in Princeton, NJ, and in Bucks County, PA, so at least we're getting good advice for both states if gay marriage should become legal in NJ and we decide to move there (NJ is only a mile away).

But when it comes to divorce for gay couples, I think we're only beginning to see the first of many issues to come.

Currently, none of the 50 states requires residency as a prerequisite for a marriage license. In other words, straight people can drive to Las Vegas from anywhere and get married at the Elvis chapel.

BUT it's different with gay couples:

Divorce is solely the province of state law. If a couple who were wed in New York but live in Philadelphia want to be divorced, well, they can’t be. Not only is same-sex marriage prohibited in Pennsylvania — the court’s landmark ruling in United States v. Windsor does nothing to change that — but Pennsylvania’s “mini DOMA,” passed in 1996, provides that such a marriage entered into elsewhere is “void in this Commonwealth.” And if Pennsylvania doesn’t recognize you as being married, its courts have no authority to divorce you.

This is why I say that Tony and I are waiting right now: because we live in the Commonwealth of PA. I've been asked by several people if we are getting married now that the SCOTUS ruling changed the lives of so many other gay couples. But if we did go to New York and we were married there, we want to know what that means for us because we live in PA. So for many gay couples the SCOTUS ruling was a huge event. Yet for others who live in states like PA, we still have to worry. And from what I'm gathering, the complications go deeper than what I can write in this one post. This is why we have been talking with our attorney, whom we trust completely.

This next part is very interesting, and yet another reason we're talking to our attorney.  Tony and I have several good friends who are PA residents and they are going up to Provincetown to get married this summer, where marriage is legal in MA, and I have to wonder if they really know what they are doing. I know that no one ever gets married with the thought of getting divorced, but I'm also a realist and I know that life happens sometimes. Cute, attractive young gay guys come along and middle aged gay men go through mid-life crisis just like straight men and women (trust me on this). The biggest shock of my life so far was when my ex-sister-in-law divorced my younger even bigger shock to him!! So shit does happen, and it can happen to all of us.

So the unhappy couple is stuck unless one of them moves to a state that will a) recognize their marriage; and b) lives there long enough to satisfy the residency requirement. What happens if neither spouse does this and one of them wants to marry someone else? She can’t. Because she’s still married. The irony is overwhelming: Gay people have fought so hard for marriage equality and now, when some of those marriages fail, they need to fight for the right to get divorced.

The irony IS overwhelming, and I can only suggest one thing to any gay couples who are thinking of getting married right now. Make sure you know where you stand legally if you live in a state where same sex marriage is NOT recognized. Don't listen to idiots who don't know what they are talking about either. Get good solid legal advice first. I've been with Tony for over twenty years and even though we've always been diligent about legal matters that involve power of attorney in all forms, I still am not sure what the SCOTUS ruling means for us at this particular time. And I wouldn't even begin to hand out any advice...other than get legal this point in time.


Molly Church said...

I see the irony, but the reality is that getting the right to divorce has a long and storied history -- we're not the first group to have to fight for it.

And I think focusing on the irony (fighting for the rights to marry and divorce at the same time), puts the focus of absurdity on us (look at them! so changable! FU), when it should be on the law.

I've long been a believer in pre-nups. Let's face it, we don't have to get married to be in love. Marriage is about a lot more than love, and it's a contract. I think it would be enormously beneficial if we started seeing pre-nups as much a routine part of getting married as picking a cake.

I mention it in my comment on this post, not tangentially, but because gay couples are used to the idea of legal work arounds to get many of the benefits/protections of marriage in the absence of the right to do so, so I would hope we would be more comfortable with the idea of saying, let's be honest, not all marriages work out. And if that were to happen to us, I'd prefer we had come to an agreement now, when we love each other.

Including, for example -- if we have to get divorced, one of us might have to move to satisfy residency requirements -- how should we determine who takes on that burden?

Of course that's not the same as the right to divorce -- and yes, for the love of everything sacred get legal advice from a lawyer -- but it might be a place to start.

ryan field said...

"I've long been a believer in pre-nups."

I totally agree for many reasons.

It's interesting how it's hard to get any information on same sex marriage for people who don't live in states where it's legal yet. I have spoken to dozens of friends recently and they all seem to have a different idea of what federal benefits they get. And all seem to think they are correct.