For same-sex couples, divorce is sought-after benefit

Sunday, May 23, 2004

SAN FRANCISCO -- It may not be on their minds as they walk down the aisle in Massachusetts, but along with gifts and toasts, many gay couples are finally getting one of the biggest benefits of matrimony: the ability to obtain a clean divorce.

Because their unions were not legally binding, gay couples have had few protections when they split and have had to rely on the inconsistent mercy of judges to obtain alimony, parental rights or a stake in the couple's finances.

"The single most important thing you get with marriage is divorce, a predictable process by which property is divided, debt is apportioned and arrangements are made for custody and visitation of children," said Jo Ann Citron, a Boston lawyer researching a book on same-sex breakups called "The Gay Divorcee."

Courts in liberal-leaning states such as Massachusetts have been increasingly willing to apply the principles of divorce laws to same-sex breakups. But in more conservative states such as Texas, judges have been loath to do anything that would confer marital-like standing on same-sex couples, even when partners have drawn up detailed contracts.

The clearest benefits will be for those who earn less than their same-sex partners, said Frederick Hertz, a real estate lawyer in Oakland, Calif., who has developed a lucrative specialty resolving legal disputes among the San Francisco Bay area's relatively affluent gay population.

Hertz recently represented a lesbian who had become a stay-at-home mother while her girlfriend climbed the corporate ladder. When they split up, the employed partner refused to include stock options among their joint assets.

"We got a decent settlement, but decent compared to nothing," Hertz said.

Gay marriage became legal in Massachusetts on Monday under a landmark ruling by the state's highest court. Vermont has granted spousal rights to gay couples with civil unions since 2000, making it the only other state where gays and lesbians are treated the same as married couples for the purposes of divorce.

In California, a law scheduled to take effect Jan. 1 would give the state's 25,000 couples registered as domestic partners access to family court proceedings when their relationships end.

"At the present time it is a very mixed sort of picture," said Art Leonard, a professor at New York Law School who monitors court rulings involving gays.

Couples who drafted agreements with a lawyer's help may be able to provide courts with rules to interpret. But problems arise when "they are just living together," Leonard said. "There is basically nothing there as far as a legal framework."

San Francisco attorneys Julian Chang and Wade Estey avoided acrimony when they split up after more than 14 years together.

The men earned equal incomes and had drawn up elaborate agreements governing everything from home ownership and hospital-visitation rights to frequent-flier miles and funeral arrangements. They handled their dissolution themselves, splitting everything down the middle.

Both agree that had marriage been an option, their "divorce" would have been easier -- and they might not have broken up at all.

"There is something different about being married than in an unmarried relationship -- it would make me more committed to working things out," Estey said.

With more than half of U.S. marriages ending in divorce, lawyers anticipate it won't be long before they represent a new class of divorcing couples.

Boston attorney Joyce Kauffman expects to see two kinds of gay couples getting married: partners "who have already been together a long time and the hopefully smaller category that makes the same mistakes heterosexuals make."

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