Same-Sex Divorce Challenges the Legal System
Most States Lack Law, Precedent To Settle Issues

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.

His partner bought and sold companies and owned homes around the world where they vacationed with friends and family. When the relationship foundered, two years after they married, the men imagined splitting personal possessions they had amassed.

"I wasn't aware of how messy things were going to get," Michael said in an interview. "The legal maneuvering we had to go through was enormous, and it was difficult to find attorneys who were willing to handle the issue because there just aren't that many lawyers familiar enough with the law and how it affects a gay divorce."

Retirement savings and pension plans, easily split for heterosexual couples divorcing, would have to be cashed out and would be heavily taxed for gay couples. Current tax law allows only $12,000 to be transferred from one gay spouse to another without being subject to a gift tax.

"Federal law looks at gay divorcees as strangers," Eppley said. "Bob can't transfer property to Steve without it counting as a taxable transfer, whether in capital gains or a gift and potentially both."

Lawyers have found no shortage of creative solutions around the tax codes by swapping assets, setting up irrevocable trusts and parceling out years' worth of payments in amounts that meet the tax threshold.

Barbara J. Macy, a divorce lawyer with a number of lesbian clients, recalled a recent case in which the tax implications for a simple health insurance benefit led to weeks of negotiations in order to avoid one party being saddled with thousands of extra dollars a year in taxes.

"The emotional issues and personal issues in gay divorce are similar to straight divorce. But the legal issues, the tax issues and complications make your mind feel like it's going to break," she said.

To ease the financial losses arising from his divorce, Michael's former spouse employed a $1 million lifetime tax exemption often reserved for estate planning. He gave money from his estate to Michael, who would not have to pay taxes on it. But when the ex-spouse dies, the amount he can bequeath to his heirs tax-free will be reduced by the amount he gave to Michael.

"You can pass $1 million free and clear of tax, so a portion of what was passed between us had to come from my partner's death tax. When he dies and his estate is worth $10 million, his heirs will not have the $1 million tax cushion, so the government even then will get its money," Michael said.

Massachusetts is an equitable-distribution state, and a major factor in determining the distribution of assets is the duration of the marriage. But gay couples are fighting that in court, contending they would have been married longer if it had been allowed. The argument is gaining ground with judges who have been willing in same-sex divorce cases to take account of the entire length of the relationship in deciding on division of assets.

"If a couple has been together for 25 years in Massachusetts, their assets would be divided 50-50," said Elizabeth Zeldin, who has handled several same-sex divorces. "But a same-sex couple has only been married a maximum of three years, so do you treat it as a three-year marriage or a 25-year marriage? A lot of judges are now saying: Treat it as a long-term marriage."

Where the courts have not always responded is on the status of children.

In Massachusetts, a child born into a heterosexual marriage is a child of the marriage, regardless of whether both spouses are the biological or legal parents.

That is not necessarily the case for same-sex couples.

Kauffman represented a woman who unsuccessfully sued her departing spouse for child support. Since the spouse was not the biological parent, she had no legal obligation to the child, whom she had not co-adopted. "A lot of couples ran out to get married when they should have run out to co-adopt," Kauffman said. "I tell all my clients: 'Adopt, adopt, adopt. It is the only way to protect your child.' "

In 1996, Congress passed, and President Bill Clinton signed, the Defense of Marriage Act, which says that no state is required to recognize a same-sex marriage that occurred in another state. States that do not recognize those marriages "would probably not divorce a same-sex couple from Massachusetts," said a 2004 handbook on marriage produced by the Massachusetts Lesbian and Gay Bar Association.

Under Massachusetts law, both people seeking a divorce must reside in the state. That left Cassandra Ormiston and Margaret Chambers of Rhode Island in a bind. The two were wed in Massachusetts in 2004, soon after the state legalized same-sex marriages. But in 2006, they filed for divorce in their home state, where the law is silent on whether such marriages are legal.

The divorce issue then fell to the Rhode Island Supreme Court, which ruled in December that the state's family court lacks the authority to grant a divorce for same-sex couples because the state legislature has not defined marriage as anything other than a union between a man and a woman.

"There is now no way for me to get divorced unless I move back to Massachusetts, establish residency and then wait a year before I file, and I simply will not do that," a bitter Ormiston said after the ruling.

Andrew Koppelman, a law professor at Northwestern University, published a book in 2006, "Same Sex, Different States: When Same-Sex Marriages Cross State Lines." Koppelman urged states that oppose same-sex marriage to agree at least to perform divorces. "You have to have a way for people to get out of these things -- otherwise, you have multiple claims on the same property and no protections for people entering into new marriages. I think states that try to adopt these rules refusing to recognize the marriages just haven't thought it through."

Staff researcher Julie Tate contributed to this report.

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