Breaking Up Is Hard to Do
After Struggling to Create Unions, Same-Sex Couples Must Fight Just as Hard to Dissolve Them
“Marriage isn’t the special thing it once was,” says Joe Glover, president of Family Policy Network of Maryland, a conservative group that opposes same-sex unions, in what could be the understatement of the year. Marriage certainly has changed over the years—the U.S. now has a heterosexual divorce rate that teeters around 50 percent. And same-sex couples have started putting their own spin on the old phrase “ball and chain” through marriages, civil unions, and legal partnerships. But what happens when you and your once happily married significant same-sex other want to be significantly same-sex divorced? If you’re living in Maryland, or any other of the 46 states that refuse to recognize gay divorce, you’re looking at a complicated process.
In Canada, where courts started legalizing gay marriage in 2003, the first same-sex divorce petition was filed in June 2004, more than a year after the lesbian couple separated. The divorce was finalized in September 2004 when a Canadian judge ruled that “spouses,” as defined in the nation’s divorce law, no longer had to be a man and a woman. The United States, in the midst of the gay marriage debate, is now taking a close look at the issue of gay separations. But the fact that same-sex unions are only recognized in certain states makes the issue more complicated here than it is in Canada.
Baltimore couple Dave Pfau, 26, and Mark Fisher, 24, met through a friend in 2001. On their anniversary in January 2005, Pfau surprised Fisher with an engagement ring. “Of course I said yes,” Fisher says. They were wed in Toronto last Sept. 16, after a celebratory visit to Niagara Falls. At the wedding were several of Pfau’s family members who, unlike his parents, did not oppose the same-sex union. Fisher brought a good friend, a drag queen named Sherrard. While Fisher’s family is supportive of his same-sex relationship, he was afraid to invite them to the elopement-style ceremony.
“I didn’t know how they were going to take it,” Fisher says. “In the end they were just upset that they didn’t get to be there.” Otherwise, everything was perfect at first, but in 2006 that started to change.
Fisher and Pfau have their share of marital stress. Besides the objections of Pfau’s family and the young age at which they wed, Pfau says “the marriage was rushed,” because of a rumor that Canada would stop allowing American same-sex couples to marry there. Pfau feared they would miss their chance if they didn’t act fast.
Now, like many married Americans, Pfau and Fisher are considering divorce. The problem is that the couple’s marriage is recognized only in Canada and Massachusetts, where gay marriage is permitted, but Pfau and Fisher live in Baltimore, where, according to state law, they aren’t married at all.
“But I can’t marry a woman here if I decided to, either,” Pfau says. In order to divorce, one of the two men would need to establish residency in Canada. Despite Fisher’s fondness for Toronto, the required yearlong stay to achieve residency would be more than just a lifestyle cramp.
“It’s a strong argument that you can’t dissolve something you don’t recognize,” says Mark Scurti, an attorney who specializes in LGBT law at Baltimore firm Scurti and Gulling. “There was a case in Texas, and in Illinois as well, a judge had dissolved a [same-sex] civil union. They were appealed and overturned because we can’t dissolve what we don’t recognize.”
But in Iowa and West Virginia, that’s exactly what is happening. In April and January of 2003, respectively, each state dissolved a Vermont-obtained civil union between same-sex partners. In West Virginia, Judge David Born ruled that a civil union is not a marriage, and that his state’s divorce laws did not apply to the case. In Iowa, Judge Jeffrey Neary confessed he didn’t notice he was dissolving a union between a same-sex couple. To the outrage of local politicians and conservative activists, Neary cited a clause in the U.S. Constitution that commands states to recognize the laws of other states.
Optimistic gay-rights supporters view this recognition of civil unions as a step forward in the fight for equal marriage rights. In a 2003 article titled “My Gay Divorce” in Legal Affairs magazine, Laurie Essig writes, “Same-sex marriage advocates hope the West Virginia ruling will serve as an example for other states. Gay divorce may then be the Trojan horse that gets gay marriage into the courts.”
Family Policy Network’s Glover disagrees. “If people wish to shape culture by redefining marriage, it would have to take place as the result of a constitutional amendment, not the result of the whim of a particular judge,” he says. “I think that you see a lot of trick plays being employed by gay-rights activists. If they really meant what they say, they would be seeking a constitutional amendment. You can find a judge somewhere who will distort the law.”
Fisher isn’t surprised with this criticism. “I don’t think gay divorce will push gay marriage,” he says. “It’s going to be more of a way for conservatives to get in there and meddle around and say things like, ‘If their marriages are so good, why are they getting divorced?’”
While Pfau and Fisher struggle with marital issues, many same-sex couples who have not been legally wed find breaking up equally intimidating. For any same-sex couple who have shared financial obligations or children, not being legally married complicates the divorce process and often leaves one partner undercompensated. Many same-sex couples have established power of attorney for medical issues, but few think to sign a domestic partnership agreement. These agreements act as gay-friendly prenuptials, legally binding contracts that spell out exactly who gets what in the event of a split.
These documents may not be the most romantic way to woo your lover, but they help same-sex couples avoid complications down the line. “We recommend having a contract that outlines who’s going to do what regarding assets, bank accounts, credit card liability, and how they’re going to separate their property,” Scurti says. “In essence it’s a contract that says, ‘Here’s how we’re going to disentangle the assets and liability.’”
When a couple lacks a legal agreement, things get more complicated. “For an opposite-sex couple that’s been married, you simply turn to the family law article of the Maryland Code, and it lays out who gets what and how you go about dividing assets and liabilities,” Scurti says. “For a same-sex couple, you don’t have that luxury. You have to resort to creative lawyering.”
Because Maryland allows second-parent adoption, LGBT couples who adopt have the opportunity to safeguard their parenting rights. But since many same-sex partners do not take advantage of second-parent adoption, the noncustodial partner is often ignored by the courts after a breakup. “Unfortunately, the biological parent makes all the decisions regarding access, visitation, et cetera,” Scurti says. “I’ve seen this more and more. Couples enter into a relationship and say, ‘Let’s have a family,’ but they don’t get around to doing the second-parent adoption because of the cost or the process.”
Predictably, heterosexual couples who lack biological ties to their children have it much easier. For example, a straight, sterile husband whose wife is artificially inseminated is automatically granted parental rights through the courts, despite his nonbiological tie to the child. Not so with same-sex couples. “They split up, and all of the sudden one parent is denied access to the children, or called a roommate or baby-sitter,” Scurti says. “It’s just heart-wrenching.”
Without state recognition of their relationships, the courts treat the couples as strangers. Judges can award no rights to an estranged parent, leading to emotionally and financially draining court battles in an attempt to prove that the estranged partner is a de facto parent, or a psychological parent. But, as Scurti points out, “it’s tough to prove.”
With all the political controversy surrounding same-sex marriage, many people forget that the original issue is about the decision of two people. For Fisher and Pfau, the pressure from the gay community to keep their marriage together has been both supportive and, at times, aggravating. “There is such a strain from our friends when a couple is married or civil-unioned,” Fisher says. “People I don’t even know are coming up to me and saying, ‘Mark, how are you?’ It’s crazy.”
Pfau agrees, saying that a local bartender “wouldn’t serve me for a week straight. He was protesting.”
Although the lack of divorce options for same-sex couples seems bleak, Fisher and Pfau have found a more optimistic way of looking at their seemingly unseverable relationship. “We’re trying to work things out,” Fisher says. In the midst of conflicting opinions and legal battles, a romantic moment of clarity blossomed. “The fights we were having were average: money, time, average stuff,” Pfau says. “It was normal marriage stress.”
While the couple is not yet out of troubled-relationship waters, they are now focusing their energy on finding marriage counseling instead of divorce. “That’s frustrating as well, because now that we’ve decided to hold it together, none of the marriage counselors will touch us,” Pfau says. “They aren’t qualified to deal with same-sex couples.”
Ironically, the difficulty of obtaining divorces may result in stronger homosexual bonds. Gay partnerships then, although viewed by conservatives as a threat to the heterosexual sanctity of marriage, may redefine the marriage standard itself. In the meantime, does anybody have the number for a good gay marriage counselor?
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