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Having a successful marriage is a difficult proposition at best.  Marriages can be filled with the same duality of ups and downs that we face as individuals going through life.  Gay marriages offer the same pendulum of give and take, compromise and communication as their heterosexual counterpart, but they too more often than not end up in divorce.  And same-sex divorces might be even tougher these days than the marriage themselves.

This is due in large part to the fact that gay marriage is legal in only thirteen (13) states in our union and the District of Columbia.  So if a same-sex couple lives in one of the other 37 states, and wants to marry, they have to go to DC or one of the legal 13 to marry, then they return to their home state to live happily ever after, right?  Well, it’s not always that simple.  Many times, these couples face the realities of a marriage gone awry, and the parties decide to part and go their own ways.  But how do they divorce legally since their state doesn’t even recognize their marriage as being legal in the first place?

Thousands of couples potentially face this issue right now.  To obtain a divorce they would need to go back to a state that recognizes their legal right to marry and then establish legal residency there.  Or the state might impose other onerous requirements for their divorce.

Recent statistics indicate that same-sex couples divorce at half the rate that heterosexual couples divorce.  That figure is expected to rise as more gay couples seek divorce, and the states’ laws likely catch up with that rise.

The key to all this is to be smart.  And here’s four tips on how to be smart regarding same-sex marriages and divorce:

1) Before marriage, consult an experienced family law attorney When it comes to marriage and divorce, whether same-sex or heterosexual, there truly is nothing more important than a professional who is looking out for your best interests. Certified family law specialists are just that: family law specialists. Find one who can handle complex issues like estate planning and custody. There are also organizations such as Lambda Legal and the National Center for Lesbian Rights who can provide information.

2)      Consider creating a pre-nuptial (or a postnup, which is recognized in most states) agreement.  A written agreement between wedding parties can be important to help detail ownership of assets accrued by and between the parties during their relationship.  The truth is, all money and property issues can be settled without the need of a court or a judge.  All the parties have to do is sit down and agree to who owns what and who gets what in case of a split.  Such agreements are legally recognized in every state.  And even if the state you’re living in doesn’t recognize same-sex marriages, ancillary matters such as financial issues can be settled which would allow the parties to move forward while awaiting the legal drama of their divorce to play out.

3)      If possible marry in one of the states or other jurisdictions that grant divorces without onerous residency requirements.  California is one of those states.  So are Minnesota, Delaware, and Washington D.C.

4) Regarding potential child custody issues, if either party should have a child during wedlock, the non-biological parent might consider legally adopting the child at the time of birth. Even if the same-sex marriage is not legally recognized by that state, the state will recognize the legality of the adoption.

Again, as in any legally binding relationship, homework and due diligence are important.  Know what you’re doing before you enter into legally binding contracts such as marriage.  Consult with a family law specialist.  Know the laws of the states you’re dealing with.  Be smart.  And build a legally and fundamentally strong foundation that will bring peace to you and your soon-to-be family.


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In the other major Defense of Marriage Act (DOMA) case recently heard by the United States Supreme Court, a ‘Supreme’ Majority, in a 5 to 4 decision, held that the official sponsors of California’s Proposition 8 lack Article III (of the U.S. Constitution) standing to appeal the U.S. District Court’s order striking it down as unconstitutional or to defend its constitutionality in the 9th Circuit or in the United States Supreme Court.

The case of Hollingsworth v. Perry stems from when California voters had initially approved Proposition 8, which had amended California’s Constitution to provide that only marriages between a man and a woman are valid or recognized in California.  Two same-sex couples wishing to marry, immediately challenged the law’s constitutionality in the U.S. District Court for the Northern District of California.

The District Court held Prop 8 to be unconstitutional.  When the state of California refused to appeal that decision, proponents of Prop 8 appealed.  The matter eventually ended up with the ‘Supremes’, when the USSCT granted certiorari.

In reaching its decision in the case, the United States Supreme Court made six (6) important legal findings.  They are:

1)      The United States Supreme Court has the power to decide only actual cases and controversies brought by persons who have standing to do so;

2)      A person must show that he/she has suffered a “concrete and particularized injury that is fairly traceable to the challenged conduct and is likely to be redressed by a favorable judicial decision”;

3)      Standing must be shown at all stages of the litigation, including appeal;

4)      Proponents lack standing to pursue either the appeal or the cert proceeding because they have no personal stake in enforcing Prop 8 beyond the general interest of any other California resident;

5)      Proponents cannot establish standing by asserting the rights or interests of third parties; and

6)      California Supreme Court’s determination that proponents had standing does not confer standing on them as agents of the state and cannot override standing requirements of Article III of the U.S. Constitution.

In all, the Majority held that proponents lacked standing to appeal in the 9th Circuit, and the 9th Circuit lacked jurisdiction to consider their appeal.


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As reported by the Ventura County Star, last month the United States Supreme Court, in a 5-4 decision, ruled that Section 3 of the Defense of Marriage Act (DOMA), which had defined marriage as a legal union between man and woman for the purposes of federal rules, regulations, and administrative determinations, is unconstitutional.  The case of United States v. Windsor (6/26/13) USSCT No. 12-307 (Kennedy), centered on two women in a committed relationship residing in New York, and then traveling to Ontario to be married.

Their marriage was recognized as valid by the state of New York.  However, in 2009, Wife 1 died, leaving her entire estate to Wife 2.  When Wife 2 sought to claim an estate tax exemption as Wife 1’s surviving spouse, she was denied the exemption because per DOMA, Section 3, she did not qualify as a surviving spouse.  And, thus, the legal challenge began.

In their ruling, the majority for the United States Supreme Court made seven (7) important legal findings.  They are:

1)      By continuing to enforce Section 3 of the Defense of Marriage Act, the United States retains sufficient stake to support standing to appeal and seek cert;

2)      BLAG’s “sharp adversarial presentation” satisfies standing concerns raised by the fact that all principal parties essentially agree;

3)      Definition and regulation of marriage has traditionally been left to the states, but Congress may enact limited federal laws on those issues to further federal policy;

4)      DOMA goes beyond those traditional limits by creating a federal definition of marriage that makes “second-class marriages” of valid same-sex marriages in states that permit such marriages;

5)      DOMA’s depriving same-sex couples of benefits and responsibilities available to federally recognized heterosexual marriages is strong evidence of its “purpose and effect of disapproval” of same-sex marriage;

6)      DOMA impermissibly requires same-sex married couples to live as married for state law purposes, but unmarried for federal law purposes; and

7)      DOMA “humiliates tens of thousands of children now being raised by same-sex couples” and brings financial harm to those children.

In all, the majority held Section 3 of the Defense of Marriage Act to be unconstitutional as a deprivation of liberty of the person guaranteed by the Fifth Amendment, and thus to be invalid.