Same-Sex Divorce Challenges the Legal System

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By Dafna Linzer
Washington Post Staff Writer
Wednesday, January 2, 2008

When her three-year-old marriage broke up, the 44-year-old doctor assumed she and her ex would split their property and jointly parent their two children. Her stay-at-home spouse wanted sole custody and the right to move the children out of Massachusetts.

In pretrial motions, both parents made the same argument to a judge: The children should be with me; I'm their mother.

For years, family court judges leaned toward a maternal preference when it came to custody disputes. But what to do when both parents are women, or neither is? Judges in Massachusetts have been grappling with that question since gay and lesbian couples began filing for divorce in 2004, seven months after the state Supreme Court legalized same-sex marriage.

Nearly 10,000 gay and lesbian couples married after the ruling. Massachusetts does not keep records on the number who have divorced, but lawyers who specialize in family cases say it is in the dozens. Those who choose to end their marriages soon discover that the trauma of divorce is compounded by legal and financial difficulties that heterosexual couples generally are spared.

"One of the benefits of marriage is divorce," said Joyce Kauffman, a Boston divorce lawyer who has handled a dozen same-sex divorce cases. "But for a lot of couples, that benefit is very complicated and very costly in ways that heterosexual couples would never have to experience."

In the case of the doctor, she and her spouse each gave birth to a boy fathered by the same sperm donor. They then adopted one another's sons. Biologically, their children are half-siblings; legally, they are full brothers.

"Up to now, I've been lucky with the court," said the doctor, who spoke on the condition of anonymity so as not to prejudice her court case. "Giving birth to one of our children has given me leeway because judges often show a preference toward a biological mother. I've spoken to other lesbian women who were in a similar situation, except that they were not the biological mothers of their children, and, in my opinion, they were not treated as fairly by the court."

While the parties are litigating, a family court in Boston has come up with a Solomonic ruling, saying that each of the women can spend half the week alone in the family home with the children.

For same-sex couples, divorce can be financially ruinous. Heterosexual couples claim a tax deduction for alimony payments, but that benefit is not available to gay and lesbian spouses because the Internal Revenue Service does not recognize their marriages.

Divorce lawyers say that, while gay people making alimony payments are hurt the most by the IRS policy, their ex-spouses are also affected, because a tax deduction often provides an incentive for larger payments.

"In a straight context, alimony is an income stream from one person to another and tax-deductible to the person who is paying it," said David W. Eppley, a divorce lawyer with lesbian clients. "But in a gay divorce, there aren't two parties, there are three, and that third party is Uncle Sam."

Michael, a 42-year-old Bostonian whose divorce settlement precludes him from speaking publicly about its details, met his older and far wealthier spouse 17 years before they were able to marry. He came to the relationship fresh out of college, with no assets and little means of independent support.


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