REPOST: Same-sex marriage needs same-sex divorce

With an increasing number of states legalizing same-sex marriage, it almost seems like that natural next step would be same-sex divorce.  This post on Salon.com features an excerpt from the Margaret Klaw book, "Keeping It Civil: The Case of the Pre-nup and the Porsche & Other True Accounts from the Files of a Family Lawyer," which gives insight into the relationship between marriage and the law.

Image source: Salon.com via Shutterstock

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. 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 currently 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 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 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.

Although California has had inconsistent laws regarding marriage equality, same-sex unions would benefit from the protection of a prenuptial agreement.  This Twitter account for Michael Kelly, one of the most seasoned divorce lawyers in the state, provides quick tips and more information about divorce-related matters.