Recognizing Gay Divorce Equality

Few options for law-based asset distribution are available in states that that do not recognize same-sex marriage and cannot perform gay divorce or in states lacking civil-union laws.

Gay Divorce Equality

What happens to the unmarried gay person whose long-term, marriage-like relationship ends? What about a married same-sex couple in a state that does not recognize gay divorce? Can he avail himself of the remedies available to married people under our divorce laws? Is she entitled to any assets or support from her ex?

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Keeping It Civil by Margaret Klaw (Algonquin Books of Chapel Hill, 2013) offers a rare inside look at how a lawyer negotiates family law cases with opposing counsel, prepares witnesses for testimony, sifts through legal precedents to develop courtroom strategy, presents arguments to the judge, and handles clients. Klaw brings a deeper understanding of the way cultural attitudes about sex, money, women, and relationships influence the law—and vice versa. In the following section from “Divorce Equality,” raises gay divorce issues across America—from states that do not recognize gay marriage and thus do not perform same-sex divorce, to states that do not operate with civil-union laws—and how assets are distributed between a couple when the law lacks protocol.

Gay Divorce Equality

The other day, a woman who wants a divorce called me. Which initially sounded fine, since that’s what I do. But upon further discussion, it turned out not to be fine. It turned out that I can’t get her divorced, and neither can anyone else. She’s stuck in a marriage that she and her spouse both want to end, with no feasible way out.

Sound like the eighteenth century? Or Saudi Arabia, perhaps? To the contrary, this woman suffers from a thor­oughly modern problem. The problem is that her spouse is a wife, not a husband. This woman married her partner in Vermont—picture the quaint inn, the rolling green hills dotted with black-and-white cows, the wedding package so appealing to same-sex couples in that most progressive state of all—and after the wedding, they packed up and drove back home to Philly. Therein lies the problem. Pennsylva­nia does not recognize their marriage as valid, thanks to our state’s version of the federal Defense of Marriage Act. Not only does this law, passed by a group of homophobic legislators in Harrisburg back in 1996, prohibit same-sex marriage here, it also provides that such a marriage entered into in another state is “void in this Commonwealth.” And if Pennsylvania doesn’t recognize you as being married in the first place, its courts have no authority to divorce you.

You’d think I would just tell my would-be client to go back to Vermont to get divorced. But she can’t. Because although Vermont welcomes nonresidents into the state to marry, the opposite is true when it comes to divorce: You have to live there. And this is not unique to Vermont; it’s the case across the country. In 2012, there is no state that re­quires residency as a prerequisite for a marriage license. You can drive to Vegas from anywhere at all and get married in the Elvis Chapel. Which is why gay and lesbian couples have flooded into Vermont and Massachusetts and New Hampshire and the rest of the states where they can legally marry—for the weekend, that is. Like Vermont, however, all states require that at least one spouse be a resident in order to file for divorce. While “residency” is defined differ­ently by different states, it always means that at least one of the spouses has to live there for some defined period of time (in the case of Vermont, for six months) before a divorce complaint can be filed. I assume that the rationale behind these divorce residency requirements is that states don’t want to tie up their court systems adjudicating divorces for people who don’t actually live (or pay taxes) there.

What’s my would-be client to do? She’s stuck, unless she or her wife a) move to a state that will recognize their marriage; and b) live there for long enough to satisfy the residency requirement so they can file for divorce. And if they don’t do this and one of them wants to marry some­one else? She can’t. Because she’s still married. The irony is overwhelming. Gay people are fighting so hard for marriage equality, and now, when some of those marriages don’t work out (what a surprise; they’re no different from straight people!), they also need to fight for the right to divorce.

So my Vermont-married, would-be client, and all those in similar circumstances, have no access to the courts to get divorced. The related, and far more common, would-be cli­ent is the unmarried gay person whose long-term, marriage-­like relationship ends. Can he avail himself of the remedies available to married people under our divorce laws? Is she entitled to any assets or support from her ex?

That’s the question I was asked by Eddie, who’d been in a relationship for twenty-two years when his partner dumped him for another man. Older, educated, and suc­cessful, Marco, the ex, owned a house, investments, and a pension. Eddie had none of those. He was a high school graduate who essentially hadn’t worked since he moved in with Marco at the age of twenty-one. He dabbled in various artistic pursuits, none of them profitable. But that was okay, because Marco supported him and, according to Eddie, specifically, explicitly, told him that he always would. So Eddie enjoyed their comfortable, middle-class life together, and never took any measures to ensure his own financial secu­rity. When Marco ended the relationship, Eddie was faced with the hard reality that here he was, forty-three years old, with no money in the bank and no ability to earn much more than minimum wage. He came to me to find out if the promises Marco made could be enforced.

I looked into it and saw that the answer was a resound­ing maybe. It’s fairly uncharted territory in Pennsylvania. In addition to same-sex couples not having the protection of our divorce code, since they can neither marry here nor have their out-of-state marriages recognized, we have no civil-union laws or domestic-partnership laws either. Which is why my client Jorani was better off marrying her boyfriend, even with a restrictive prenuptial agreement, than simply continuing to live with him. What we’re left with is the common law, those basic legal principles brought over from England centuries ago. For Eddie, the common law prin­ciple on which we could hang our hat was the law of con­tracts. We would have to convince a judge that Eddie and Marco had made a contract that Marco breached, and as a result, Eddie was entitled to compensation. This would not be an easy task, since there was no written agreement. Our argument would be that the existence of a contract could be implied from Eddie’s and Marco’s words and actions.

Not surprisingly, Marco denied that he made any such promises to Eddie, and he downplayed the seriousness of the relationship, emphasizing both men’s admission to having had other sexual partners during the decades they lived to­gether. At trial, Eddie testified about specific instances in which Marco told him he would provide for Eddie finan­cially for the rest of his life, and we presented evidence of actions taken by Marco that would support that testimony, such as naming Eddie the beneficiary of his pension and his life insurance and providing for Eddie in his will.

A contract requires an offer and an acceptance. We ar­gued to the judge that Marco offered to Eddie, by his verbal promises and by his conduct, which was consistent with those promises, that he would take care of Eddie forever. Eddie, we said, in order to provide companionship and do­mestic services to Marco, accepted that offer by not pur­suing education or career opportunities. The tricky thing about this argument is we had to show that “companion­ship and domestic services” was really that, rather than sexual services, as the courts won’t enforce such a contract. Just like you can’t sue to enforce a drug deal gone bad or to recoup the amount you were shorted in an extortion scheme, you can’t look to the courts to enforce a contract for, essentially, prostitution.

There was little case law to rely on in Pennsylvania, but we found some very helpful decisions coming from our sister state across the Delaware River. The New Jersey Supreme Court, in a case involving an unmarried hetero­sexual couple (actually, one party, Mr. Roccamonte, was married, but to someone else, but the claim for support was brought against his estate after his death by his girlfriend, with whom he had lived for twenty-five years), held that “a general promise of support for life, broadly expressed, made by one party to the other with some form of consid­eration given by the other will suffice to form a contract.”

“Consideration” refers to what is given in exchange for a promise. If there’s no consideration, a promise just becomes a gift, and you can’t force someone to give you a gift. But if Mr. Roccamonte promised his girlfriend financial sup­port in exchange for housekeeping services, and the house­keeping services were in fact performed by her, then there is consideration for his promise of support—called by the wonderful name “palimony” in New Jersey and in many other courts around the country—and he can be required to provide it. That is, so long as the consideration is not sex.

In the Roccamonte case, the New Jersey Supreme Court found that the plaintiff’s “making a home for the defen­dant, cooking for him, and acting as his social companion” was ample consideration in exchange for Mr. Roccamonte’s promise to support her for life. The court stated that the law of New Jersey was that “unmarried adult partners, even those who may be married to others, have the right to choose to cohabit together in a marital-like relationship, and that if one of those partners is induced to do so by a promise of support given her by the other, that promise will be enforced by the court.”

We loved the Roccamonte case. We briefed it thoroughly for the judge. Unfortunately, what the New Jersey Supreme Court rules is not binding on the courts of Pennsylvania; it’s merely illustrative. Given the dearth of law on the subject in our state, we asked the judge to look to New Jersey for guidance about how she should rule. Although we knew going in that it was a long shot, we were cautiously opti­mistic by the end of the trial. We felt that the judge had paid close attention to the testimony and seemed sympathetic to our client’s plight. I made our pitch during closing argu­ments, asking her to award Eddie $300,000, which was the amount Marco received from the sale of the house where he and Eddie had lived for twenty-two years and Eddie had come to think of as his own. We argued that this was a rea­sonable amount to fulfill the promise of lifetime support, as it would enable Eddie to buy his own house. The judge nod­ded as she listened. My associate and I packed up our files and went back to the office, chewed our nails, and waited for her decision.

It came two weeks later. We lost. We never got out of the starting gate. The judge ruled that she could not find there was a contract. We had not convinced her, by a preponder­ance of the evidence, that Marco had in fact promised to provide for Eddie financially. So she never reached the legal issues, although her opinion indicates that had she done so, she actually would have been persuaded by our argu­ments. Had she found that a contract existed, she would have relied on Roccamonte and other cases we cited from New Jersey, and she would have awarded money damages to Eddie. That’s encouraging and useful in the long march forward to make good law for gay people in Pennsylvania, but it was of no help to Eddie. My whole firm was devas­tated, and Eddie just couldn’t understand the result. It was so hard for him to accept that the judge believed Marco’s version of events and not his.

We keep in touch. Eddie stops by the office now and then. He’s working really hard at rebuilding his life, one step at a time. I can’t help thinking, though, how much better off he’d be now if he and Marco had been able to marry. It would have been a garden variety divorce. By my calculation, Eddie would have walked away with at least half a million dollars in assets and he’d surely be receiving alimony, and there would have been no threshold legal hurdle to jump over; he would have been entitled to those remedies.

It’s a great civil rights victory that at least some states have legalized same-sex marriage. But part of the benefit of marriage should be the legal protection afforded by di­vorce laws, based on our societal consensus that marriage is an economic partnership and that when it ends, what’s been accumulated together should be fairly divided, regard­less of title, and a spouse who was dependent on the other spouse’s income during the marriage should be supported for some period of time afterward while he gets back on his feet. These are general principles embodied, to a greater or lesser degree, in the divorce laws of all fifty states. And if you are gay and have the misfortune to live in a state where you can’t marry, or where your out-of-state marriage isn’t recognized, you don’t qualify for these basic protections. You could get lucky and win a case like Eddie’s based on common-law contract principles, but it’s an expensive, up­hill battle. It’s not the solution. Marriage equality won’t be complete without divorce equality.

Legal Update: Since this chapter was written just over a year ago, a few states which permit same-sex marriage, including Vermont, have amended their divorce laws to waive residency requirements for same-sex couples who were married there but live in states which do not recognize those marriages. However, the problem is far from solved, as most members of the rapidly expanding group of same-sex marriage states—which as of December, 2013, number sixteen plus the District of Columbia—have not taken this step, and divorce equality remains an elusive goal for most gay spouses.

Keeping It Civil: The Case of the Pre-nup and the Porsche & Other True Accounts from the Files of a Family Lawyer by Margaret Klaw. © 2013 by Margaret Klaw. Reprinted with permission of Algonquin Books of Chapel Hill. All rights reserved.