Divorce law, gay marriage not synced
New York — Cori Jo Long, 31, and Brooke Powell, 30, did everything right before they married. They fell in love slowly, based on years of friendship stretching back to high school. They planned their nuptials carefully for about a year, choosing to travel from Texas to New Hampshire in 2010 as same-sex marriage spread.
Sadly, bad times set in three years later, but uncoupling has proven far more difficult. The two women are now trapped in a state of bitter, desperate “wedlock,” an emerging antithesis to same-sex marriage victories for those who want to divorce but can’t find a way around legal snarls that prevent it.
Texas doesn’t recognize the marriage of Long and Powell, and a judge there ruled recently he had no jurisdiction to either void the union or formally grant a divorce.
“It’s hard to feel like you don’t exist, like you’re invisible under the law,” Powell said by phone from Fort Worth, Texas.
Added Long: “It’s a limbo. It’s waiting and seeing. That’s all I can do.”
The wait may be a long one as they pursue appeals. Thankfully, the two aren’t fighting over kids, an area particularly difficult in matters of same-sex divorce for couples who traveled to a state granting the freedom to marry from a state that doesn’t.
Same-sex marriage is allowed in 19 states and the District of Columbia, but laws governing divorce have not kept pace, creating a contradictory patchwork that could take years to resolve.
“It’s a mess, the inability to get divorced,” said Beth Littrell, a senior attorney for the civil rights group Lambda Legal’s Southern regional office in Atlanta.
It’s difficult to calculate precisely how many same-sex couples have divorced, but watchdogs like Littrell are keeping a close eye on the way judges and state legislatures are responding to wedlock and other divorce-related problems.
“I get hundreds of calls,” New York divorce attorney David Centeno said. “They don’t realize that they’re entering into a marriage that’s kind of like jail. You can’t get out of it unless you move here to New York and you meet the residency requirements. It’s heartbreaking. There needs to be some sort of national reform.”
Divorce procedure is generally inconsistent from state to state, but the process has become more streamlined for same-sex couples who travel to a marriage recognition state to tie the knot. If they’re seeking an uncontested divorce, California, Delaware, Hawaii, Illinois, Minnesota and Vermont — along with the District of Columbia — have loosened residency requirements, though they won’t address child custody, visitation, support or other issues related to uncoupling.
In Iowa and 12 other marriage-granting states, however, residency must be established to divorce, taking anywhere from six months to a year or more.
Perhaps the most heartbreaking aspect of wedlock is settling child custody battles, said Littrell and others. Fights over kids are usually decided in heterosexual divorces in the state where kids live, said Cathy Sakimura, family law director for the National Center for Lesbian Rights in San Francisco.
For same-sex couples in states where marriage or civil unions aren’t recognized, child-related divorce disputes are murky.
“It’s all very challenging for people,” Sakimura said. “If people have adopted, for instance, then they can just file a separate custody action in their state as an unmarried couple after they divorce, but for people who have not, they may find themselves in a situation where one parent is not going to be recognized. It can be a huge problem.”
By adoption, Sakimura means primarily so-called second-parent or co-parent adoptions. In some areas, that step is intended for unmarried couples — of the same or different sexes — when one partner has biological ties to children and the other doesn’t.
That, too, presents legal challenges: Appellate courts in seven states — Alabama, Kansas, Kentucky, North Carolina, Nebraska, Ohio and Wisconsin — have ruled that second-parent adoptions are not permissible for unmarried couples, Littrell noted.
In 19 other states, all of which have same-sex marriage bans in their state constitutions, laws are unclear whether both parents can create a legal relationship to children they are raising there.
In those states, Littrell said, if same-sex partners — married or otherwise — break up, courts likely treat them as legal strangers to each other in custody fights. Without a finalized adoption, judges may also treat the “non-legal” parent as a legal stranger, or third party, to a child.
“Without recognition as a parent, that spouse has little, if any, legal standing to ask for visitation or custody of the child they love and raised,” she said.
Not all same-sex couples with children have taken the adoption step when allowed, Sakimura said. Some may consider it unnecessary or too costly.
“Everybody who is not a biological parent, we definitely recommend they adopt if they can. That way even if they get stuck in a situation where they can’t get divorced or they can’t do a custody action as a part of their divorce, they can often be helped,” Sakimura said.
Attorney Elizabeth Schwartz in Miami, a family law specialist and lesbian, gay, bisexual and transgender advocate, said there can be “portability problems” in same-sex child custody battles from state to state, especially when moving from one state that recognizes same-sex marriage to one that doesn’t.
Florida does not recognize same-sex marriage and Schwartz finds herself educating others in the legal field about the importance of second-parent adoptions for such couples.
Regardless, Schwartz said, she and LGBT experts believe the legal emphasis is in the wrong place when it comes to settling child custody, visitation and support.
“We need to make the legal bond about the bond of parent to child,” she said, “not just parent to co-parent.”
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