I’M GAY AND I’M MARRIED! … NOW HOW DO I GET DIVORCED?

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ASK LADY ESQ.

Relationship advice from a divorce attorney.

Dear Lady Esq.,

If California doesn’t recognize your marriage (because you were married in a different state to someone of the same sex), can you still get divorced in California?  What else should I know about same sex marriage rights and issues in California?

- Curious


Dear Curious,

The short answer is, it depends.

The long answer is: This is a burgeoning area of the law, and one that is far from settled.  It is hard to give straightforward answers to Lesbian, Gay, Bisexual, and Transgendered (“LGBT”) clients: much of the law in this area remains unclear and undefined.

Same-sex marriages are currently legal in Massachusetts, Connecticut, Iowa, Vermont, and, as of January 1, 2010, New Hampshire.  I would say something celebratory here, but I have a hard time crying “yippee!” over a status that is long overdue and a choice that should be an inherent basic human right.  Seriously? This is still an issue in 2009?

California, New Jersey, Washington, D.C., Washington, Oregon, and Nevada recognize domestic partnerships, civil unions, and other “marriage-equivalent” legal statuses, while lesser registrations are available in Hawaii, Wisconsin, and Colorado.  Having a “marriage-equivalent” option is great in that it bestows rights where otherwise unavailable, but falls far short of what is deserved, and can have the tendency to make LGBT couples feel like second-class citizens.

And then there is the truly bigoted Defense of Marriage Act (“DOMA“), which ensures that federal law does not recognize same sex marriages, thus causing significant legal difficulties for married LGBT couples as well as those who are in registered domestic partnerships, civil unions, and other marriage-like legally recognized relationships.  The Respect for Marriage Act (“ROMA“) is currently before the House of Representatives for consideration as the antidote to DOMA.  President Obama has stated his opposition to DOMA (though as per his MO he hasn’t actually done anything about it), and at least one state is challenging DOMA.

Same sex marriage was legal in California from June 16, 2008 to November 5, 2008.  As of today it appears that same sex couples who were married in California during this time can be divorced in the same way that heterosexual couples are, however, DOMA issues can complicate certain aspects of the divorce process, particularly in the areas of palimony, division of property, taxes and estate planning.

Same sex couples who were married November 5, 2008 or after or prior to June 16, 2008 in a state other than California where same sex marriage is legal and have since relocated to California are strongly encouraged to become Registered Domestic Partners in California, as it may be impossible for your attorney to protect your “marriage-equivalent” rights otherwise.  This is where my personal passion and my professional duty diverge.  Personally, I don’t think same sex couples should have to register as domestic partners, but should be able to protest this differentiated status.  Professionally, as an attorney, I must counsel people to protect themselves as best they can within the confines of the current law, and in doing this I must encourage any member of the LGBT community who wishes to protect marriage-similar rights to register as domestic partners in California.  In fact, due to a lack of clarity in the current status of the law, I might even encourage same sex couples who were married in California between June 16, 2008 to November 5, 2008 to register as domestic partners, just to be on the safe side.

California Registered Domestic Partnerships can be dissolved in essentially the same way that marriages are dissolved, however, DOMA can complicate the process.  It is unclear whether or not those couples who registered as domestic partners in states other than California may currently dissolve those domestic partnerships here.

It is important to note that a city-registered Domestic Partnership status may not have the same effects, rights, and responsibilities as a state-registered Domestic Partnership status, so it is important to register with the state to ensure the full extent of rights available to you.

Other issues that come up specifically in LGBT cases include adoption and parentage cases, transgender law issues, health care, and estate planning including transfer of property at death.

You should consider contacting an attorney if you:

- are considering domestic partnership,

- were married in a state where same sex marriage is       legal and you have since relocated to California,

- want to know how to ensure that your property   transfers to your partner or spouse at your death,

- want to have your partner or spouse covered under   your health care plan

- want to have a biological or adopted child with your   partner or spouse, or

- have any other life choices that you want to make   that may have legal ramifications.

Depending on your situation you may want to meet with a family law attorney, an estate planning attorney, a tax attorney, or an attorney specializing in LGBT rights.

There are a number of excellent resources available to LGBT couples and individuals with legal questions, including the National Center for Lesbian Rights (“NCLR“); and Equality California.  Contacting one of these organizations is a great first step to ensure that your rights are protected.

At the end of the day it is imperative that we be proactive.  Donate to NCLR, Equality California, and other such organizations.  Volunteer.  Protest.  Write or call your Congressman, your Representative, your Governor.  Make your voice heard and fight for your rights and for the rights of your fellow human.

- Lady Esq.

askLadyEsq.com

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