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The Gay Divorcees: From Marriage Equality to Divorce Equality

About to kiss, or kill each other?

Marriage can be a tricky business, especially when it comes to an end. Just ask the former Skadden partner whose remarkable departure memo has everyone talking. Both his former and current marriage have attracted a lot of attention.

And at least his marriages were between one man and one woman. When same-sex unions fall apart, things can get especially complicated….

That’s the subject of a very interesting New York magazine cover story on gay divorce. After describing the break-up of one gay couple — Kevin Muir and Sam Ritchie, who married in 2004 in Massachusetts — the piece touches on the legal issues involved:

From “I do” to “I’m done” is a well-­traveled road — for straight couples. When their legal marriages are over, they pretty much know they will need a legal divorce. But for gay couples, the promise of marriage is still so new and incomplete that the idea of matrimonial courts, equitable settlements, and all the rest barely registers. How do you process the undoing of a bond that until a moment ago in history you were not allowed to form?

It’s not a subject that marriage-equality groups tend to trumpet on their websites, but gay couples are at the start of a divorce boom. One reason is obvious: More couples are eligible. According to a report by UCLA’s Williams Institute, nearly 50,000 of the approximately 640,000 gay couples in the U.S. in 2011 were married.

Yes, even U-Haul-driving lesbians get divorced. In fact, Julie and Hillary Goodridge, the lead plaintiffs in the Massachusetts same-sex marriage case, divorced in 2009.

While it’s sad to see marriages end, at least it means more business for the matrimonial bar. We’re not seeing an epidemic of gay divorces just yet; according to the prominent LGBT think tank, the Williams Institute, about one percent of same-sex marriages dissolve each year, versus two percent for different-sex couples. But many observers expect the gay divorce rate to edge up in the coming years, since many of the first gay couples to marry where the most long-term and stable ones.

As any tax lawyer can tell you, lawyers thrive — and make the most money on — complexity. So the world of gay divorce could be a gold mine, given the complexities still associated with gay marriage. Consider this:

“Imagine you’re a same-sex couple married in Washington, D.C., and taking the Amtrak from there to Boston,” says Susan Sommer, director of constitutional litigation for Lambda Legal. “You’re married in D.C.; everything’s fine. Next stop Maryland, which until 2010 wouldn’t treat you as married but now would. You get to Delaware, which has a civil-union law, so it treats you not as married but as a civil-union couple. Then you get to Pennsylvania, which has not been recognizing these out-of-state marriages as anything at all, and not allowing divorces, so while there you are potentially a legal stranger to your spouse. That’s not a good part of your trip. New Jersey recognizes your marriage only as a civil union. Then, phew, you’re in New York and you’re married again; same in Connecticut. Then you get to Rhode Island: a civil-union state where the attorney general has said you are married and the government is treating you as married, but the courts have said we won’t divorce you. Finally, you reach Massachusetts, and you can breathe a sigh of relief: You’re married. And you can divorce. But it’s a very complicated legal ride.”

Whew! Did you catch all that? Perhaps some divorce lawyers are hoping the Supreme Court will not issue a broad ruling favoring marriage quality in Hollingsworth v. Perry, aka the Proposition 8 case, just from a business development point of view.

Striking down the Defense of Marriage Act (DOMA) could have a similar, simplifying effect:

If the Supreme Court strikes down DOMA’s “one man, one woman” definition of marriage this year, some of the biggest complications for divorcing gay couples in some states will vanish. It will no longer be necessary, for instance, for lawyers to develop expensive workarounds that provide for equitable distribution of federal benefits like pensions and Social Security, which are taxed in gay divorces but not in straight ones. Simple changes in state laws will sooner or later allow gay couples to divorce wherever they please, without incurring the cost of establishing residency elsewhere or of fighting to apply “long arm” jurisdiction to a spouse back home who refuses to cooperate. And divorce plaintiffs from nonrecognition states will no longer have to reframe their marriages as business partnerships or joint ventures in order to divide marital property or force its sale.

But let’s not be parochial. The economic effects on the matrimonial bar are not the only consideration here; important rights are at stake. The ability to dissolve a marriage with legal clarity and finality is a critical one for gay couples:

One of the things — besides the law — that may make divorce especially difficult for gay people is the way it seems to prove, despite the statistics, old slurs about their relative inability to maintain stable bonds. On a larger scale, gay divorce may be used to undermine arguments for gay marriage in the first place. But Evan Wolfson, the founder and president of Freedom to Marry, says the opposite is true. Access to divorce, he often tells straight audiences, is a key justification for legalizing gay marriage. “They have to think,” he says, “but when they do, they get it.”

So lawyers are giving gay couples the same advice they give Skadden partners and British royalty: better get a prenup. Here’s some wise counsel from Allen Drexel of Drexel Grande, an expert on same-sex marriage and divorce:

“[I recommend] the signing of an agreement that, entirely apart from the financial issues, provides a clear, rational, predictable path through the dissolution process in the unhoped-for event that the relationship should fail. That’s not a zero-sum discussion. That benefits everyone.”

Lawyers, whose jobs often involve picking up the pieces when things fall apart, know better than almost anyone: stuff happens. Couples drift apart. Money and kids complicate matters. Wives of Biglaw partners fall in love with their personal trainers.

There’s no such thing as a free divorce (well, except on Valentine’s Day). A little bit of planning today, in the form of a prenuptial agreement, can save you a lot of money — and heartache, and aggravation — later on.

Straight people no longer have a monopoly on marriage, so why should they have a monopoly on divorce? As the old adage t-shirt slogan goes, “Let gay people get married, so they can be miserable like the rest of us.”

From ‘‘I Do’’ to ‘‘I’m Done’’ [New York Magazine]

Earlier: The Departing Skadden Partner, His Ex-Wife, And The Substance Of African-Americans
The Love Of A Woman Is More Valuable Than A Partnership At Skadden

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