Gay Divorce: The Next Big Legal Challenge

Seven years ago Angelique Naylor and Sabina Daly met in Austin, Texas, fell in love, and moved in together. "We donated to charity, worked, and paid our taxes like everyone else," Naylor, 39, tells NEWSWEEK. "We also thought it was important to be married before we had a child." So in 2004 they married and honeymooned in Massachusetts, and soon after adopted son, who is now 4. They shared a business in the then-booming housing market as well as a quiet, upper-middle-class family lifestyle.

But like half of all heterosexual marriages, their relationship started to fall apart. Since Texas didn't recognize their marriage, the state wouldn't grant their divorce. The only option to make it official was to establish residency in Massachusetts (while few states have residency requirements for marriage, most require a six-month stay before they grant divorce). "My son is here [in Texas], my mom is here, half of my business is here," says Naylor. "It made no economic sense, and no emotional sense, to leave." Last year, inspired by two men who were making headlines by filing for divorce in Dallas, the two women filed their own case. Prior to that, they had unsuccessfully tried mediation and several of their properties went into foreclosure due to difficulties in legally dividing up their shared assets. "This has been emotionally painful, financially painful," says Naylor. (Daly, through her lawyer, declined to talk to the press.). "It's the same struggle as any couple—the anger, the grief, the loss. It's all the same." A Texas judge agreed, and their divorce was finalized on March 31, 2010.

Texas Attorney General Greg Abbott doesn't see it that way. His spokesman, Jerry Strickland, e-mailed NEWSWEEK, writing, "Under the Constitution and law of the State of Texas, marriage is an institution between one man and one woman. Thus the parties' arrangement from another state is not a marriage under Texas law and therefore cannot be terminated by divorce." The attorney general is currently appealing the divorce of the two Dallas men, which a judge granted in October but which is not yet finalized. "If the attorney general is so against gay marriage, why is he trying to keep these guys married?" says Peter Schulte, a lawyer for one of the men. (Strickland says the marriages should be "voided," a legal method for ending what he calls an "invalid" relationship.) Some believe the Dallas case, which pits the issue of states' rights against the equal protection of the law guaranteed citizens, has the potential to make its way to the Supreme Court. As for Naylor and Daly, the attorney general has 30 days from the date of decree to contest their divorce, but for now, they're the first legally divorced gay couple in the state of Texas. They're also among the first of many same-sex divorce cases that will reach the courts in years to come.

Currently, even in states where gay marriage is legal, gay divorce is a legal nightmare. Mary Bonauto, civil-rights project director for Gay & Lesbian Advocates & Defenders, says the courts are dealing with all sorts of new issues, such as determining the true length of the partnership. If a couple was together 25 years but was only given the right to marry a few years before divorcing, courts are taking into account the entire relationship when dividing assets. And since the Federal Defense of Marriage Act prohibits the government from recognizing gay marriage—and, by extension, complicates the possibility of divorce—the tax consequences are severe. In a heterosexual divorce, when you transfer property between spouses, says Bonauto, that doesn't trigger income-tax consequences, but that's not the case for gay couples. Gay divorcees aren't able to deduct alimony payments, nor are they able to benefit from their former spouse's 401(k). "In a lengthy-enough marriage, that would be considered as marital property on divorce, and state and federal laws can permit one or both spouses to benefit from that down the line. That's simply not an option for divorcing same-sex couples because of DOMA," she says. "So you can have a situation where one partner is accumulating the nest egg while the other watches the kids, but it will never be divisible." The problems increase in a state that does not recognize gay marriage, as is the case with Texas. The couple can potentially be locked forever in unhappy matrimony. "DOMA not only complicates divorce, it undermines the whole purpose of using divorce to end a relationship, fairly settle a couple's financial affairs, and move on. To say that the federal DOMA throws a wrench in the process would be a gross understatement," Bonauto says. (Several states, including Texas, also have their own DOMA laws, further complicating the process.)

When settled in family courts—which have the tools to navigate the emotional and financial consequences of a breakup—a clean divorce can often provide the best-case scenario for couples and children who must navigate a divided future. When gay couples are blocked from access to family courts, says Jenny Pizer, senior counsel and director of the National Marriage Project of Lambda Legal, litigation involves more money and more potential anger, resulting in a harder situation for children and harm to society: "One of the ironies in fighting to prevent same-sex marriage [is] framing it as protecting children, yet children bear the harshest costs when their parents are not allowed to marry," she says, and that extends to the legal protections provided when married people decide to divorce. When couples are not allowed to dissolve their union in family court, they have to resolve financial and personal matters "in civil court, as if the divorce was a business dispute. In family court, they have the tools to assess responsibilities," she says, but contract law can't handle such subtleties, and the cases end up draining family resources. "It can leave families poorer, and relationships much more embittered. When you have to continue to coparent kids, that can be difficult." Lamba Legal helped draft and push through a 2003 California bill that made it possible for unraveling domestic partnerships to get access to family courts.

The number of gay marriages will be recorded for the first time in this year’s census, but just how many gay marriages are ending in divorce is hard to say. By 2006, according to The Boston Globe, between 35 and 45 of the more than 7,300 gay and lesbian couples who married in Massachusetts had since filed for divorce, according to an informal survey. Kim Wright, acting court administrator for the Massachusetts Probate and Family Court Department, tells NEWSWEEK that the department does not tally same-sex divorces differently than heterosexual divorces, so there are currently no updated figures for Massachusetts. Evan Wolfson, of advocacy group Freedom to Marry, expects gay divorce rates to be similar to straight marriages: "We're just as capable of making mistakes and needing change as anyone else."

Some who are opposed to granting divorces see them as a recognition of gay marriage, if even just for the short purpose of splitting up. Divorce lawyer Schulte, who is working with one of the men in the Dallas case, says he is no way petitioning for the legalization of gay marriage in Texas: "We don't have a dog in that fight. We just want them to get a divorce." And yet, many advocates see the two battles inextricably intertwined, so much so that there are resources on the Freedom to Marry Web site focused on divorce and separation, as well as on the Web site of the Human Rights Campaign. "One of the reasons gay people, like others, need the freedom to marry is divorce," says Wolfson. "It's a system of guidelines and rules and structure to help people through a painful passage."

Some couples have gone to extremes to get their divorce. One lesbian couple in Oklahoma who used just their initials in divorce proceedings had the divorce granted, but it was later declared void after the court realized both were female. In another case, two partners were registered five years ago in Massachusetts in a same-sex female marriage, but the couple—who live in Rhode Island, which does not grant same-sex marriages—has been unsuccessfully trying to divorce for two years. One of the partners, who goes by the legal name Scout, has been exploring one other, more extreme option. In California, where Scout was born, sexual reassignment surgery allows an individual to change the sex on their birth certificate. Scout says, "If I do get a sex-change operation, I could have our marriage reclassified in Massachusetts as a male-female marriage." That, oddly enough, would be the fastest way for Scout to get a divorce, despite the fact that Scout does not want the surgery but does identify as transgendered. Laws related to transgender rights might be loosening in Massachusetts, which could allow Scout to have the marriage recorded as opposite-sex without surgery, and the former couple is petitioning the state for the change. In the meantime, they own communal property they cannot divide without a refinance, "and we know how impossible that is in this atmosphere," says Scout.

As for Angelique Naylor, she and her lawyer, Jennifer Cochran, are counting down the days until the 30-day window expires for the Texas attorney general to appeal her divorce. Cochran also worries that a negative decision in the Dallas case could potentially overturn Naylor's divorce. "These couples are already going through three times the expense and headaches," she says. More gay couples are likely to move to Texas, she adds, and Austin has become a popular destination for all Americans: "This is an issue that is not going to go away." Naylor, however, expects the attorney general to intervene. "It's an election year, and apparently attacking gay people is a good thing to throw resources at. But in my heart and mind I'm divorced, no matter what. I've closed that chapter of my life."