Thursday, January 3, 2008

Same-Sex Divorce Challenges the Legal System, Washington Post Reports

The Washington Post just published the following article, Same-Sex Divorce Challenges the Legal System -, by Dafna Linzer about the peculiar problems same-sex couples face, both here in Massachusetts and elsewhere, when they split. Given the topic, the article naturally had a big focus on Massachusetts, and it includes quotes from interviews of family law specialists here who do a lot of work with gay and lesbian clients.

The article points out some of the important ways in which same-sex married couples face different legal problems and challenges than traditional (heterosexual) married couples, even though the Massachusetts Supreme Judicial Court's equal protection ruling in Goodridge et al. v. Department of Public Health et al., aimed to equalize treatment of same-sex couples and traditional couples. This just goes to show that no matter how hard one state's supreme court may try, there are many things standing in the way of equal treatment, including federal law, other states' laws, and biology itself.

Thus, gay and lesbian couples should not assume that simply by getting married they automatically have all of the exact rights and responsibilities of heterosexual married couples, even here in Massachusetts. It's not exactly true. For example, in a gay or lesbian marriage only one parent can be the biological parent, and nonbiological parents in such marriages will not automatically have the same parental rights and responsibilities as the partners in a traditional marriage - to effect such similar rights and responsibilities, such couples will need to adopt.

There are also some serious differences between the financial treatment, upon divorce, of couples married as same-sex couples and those married as heterosexual couples. And of course this all brings to mind the Golden Rule: When in doubt, see a lawyer first!

"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....'

For information about Massachusetts divorce and family law, see the Massachusetts Divorce & Family Law Page of my law firm website.

No comments: