Same Sex Divorce A New Yet Familiar Pain For Gays

With same-sex couples becoming married in increasing numbers, divorce law lags behind, aggravating and traumatizing same-sex couples in need of a divorce.

Same sex divorce needs to be redefined along with same sex marriage

Marriage is being redefined, no doubt thanks to the Supreme Court decisions a month ago that struck down the federal Defense of Marriage Act and California's Proposition 8.  As such, many same sex couples are entering a familiar yet strange new world:  Married life.  Of course, as any straight married couple can attest, being married is far harder to maintain than being in a relationship.  A lot changes with the mere bond created by marriage, and thus there is more peril and more struggle than one would have in a relationship, even with the benefits that marriage entails.  That bond also makes things more complicated, especially when things fall apart, leading to divorce.

However, as these married same-sex couples that want to divorce are discovering, they are treading very new ground, ground that is even newer than the concept of same-sex marriage.  Thus, for the time being, the very idea of divorcing a spouse in a same sex marriage will be long, arduous, and incredibly expensive.  For starters, many divorce courts in states where same-sex marriage is legal are treading new legal ground, and in fact are establishing new legal precedent through their rulings.  As such, they are moving slowly, asking for documents unnecessary except in extreme divorces, and practicing a general caution.  While this is great for the sake of establishing proper rules and grounds for divorce, it is also very expensive for divorcees, who have to pay their attorneys by the hour. 

Then there is the matter of location: Only 14 states and D.C. recognize same sex marriage, either in their state and/or in other jurisdictions.  A common practice for same-sex couples outside those jurisdictions is to vacation in a state where marriage is legal, get married, then return home.  While an effective strategy in terms of short-term interest, the problem arises if and when the time comes to divorce: More often than not, the married couple lives in a state where their union, in any sort of form, is not recognized.  The peril comes at risking trying to divorce, only to be rejected because the marriage itself is unrecognized.  Some would argue to ignore the rules and separate, but in the likely event down the road that a person gets remarried to someone else, and the state legalizes same-sex marriage, that constitutes the crime of bigamy, which carries a jail sentence in most places.

Further, even in places where it is legal, the need for caution by judges is necessary because the laws regarding same-sex couples are far more complicated than with straight couples.  Take into consideration, for example, the use of civil unions by same-sex couples, which attach a bulk of the benefits offered with marriage, in several states before same-sex marriage became possible.  Under current laws, those unions, some of which have lasted several years, will not be accepted as the start of the legal union, since courts rule the union to start at marriage.  In addition, while DOMA is now no longer law, there are still several federal statutes, especially those related to marriage and citizenship, that have not been completely adjusted to account for same-sex marriages.  So, in case assets need to be split, divorcees will be hit with a gift tax not applied to straight divorcing couples, or one's immigration status may be called into question.

As such, it will take a few years at least for the laws to update to match with the current situation, but it will not doubt making things incredibly difficult and expensive for same sex couples.  Then again, as it is representative of marriage, it is hard to say whether or not that is such a good thing, given how obsolete marriage has become, and how conforming to a social norm it is to make a relationship legitimate only through marriage.  Given that not everyone can accept that, more people are hurt than people think.

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