Divorce Equality Now

An important, often overlooked part of the same-sex marriage debate. By Andrew D. Taylor

Photo by Think Stock

The same-sex marriage movement is enjoying serious momentum these days with New York becoming the sixth state, and by far the largest, to legalize same-sex marriage, and the Obama administration announcement that it would no longer defend the Defense of Marriage Act (DOMA).

While this is great progress for marriage equality, a perhaps equally important issue – divorce equality – has been left out of the debate. In other words, what happens when same-sex spouses are legitimately married in one state while living in another that does not recognize same-sex marriage, and later decide to divorce?

This may likely become a common problem in Pennsylvania and New Jersey, especially now that our neighbors to the north recognize same-sex marriage, and Pennsylvania and New Jersey do not (and may not for some time, as an amendment to the Pennsylvania Constitution to ban same-sex marriage has recently been introduced).

For example, a couple that marries in New York and lives in Pennsylvania is left without a court which would exercise jurisdiction to enter a divorce and divide marital assets. The couple would potentially have to remain married forever since they would not meet the New York residency requirements and Pennsylvania would not recognize the marriage. Talk about being stuck in a bad marriage.

There also could never be a distribution of marital property. For many couples, one spouse is the breadwinner while the other raises the children. Typically, the wage earner accumulates the assets in his or her name, such as retirement plans, savings accounts or investment accounts. Under Pennsylvania law, if the assets were earned during the marriage, they are marital and subject to equitable distribution, regardless of title. In the case of a same-sex divorce, however, the dependent spouse would have no right to any assets titled in the name of the other.

If the marital home is titled jointly, under Pennsylvania law, the house could at least be divided under a partition action (an undesirable and archaic method to divide real estate never intended to be used to distribute marital property).  However, if the house is only in one spouse’s name, the other has no claim to the house, and is left without so much as a place to live.

To add insult to injury, there could be no claim to alimony. In addition to being left with no assets or home, the dependent spouse would be left with no income stream as well while the other walks away with a massive windfall.

The only real solution for such a couple may be to relocate together to a state recognizing same-sex marriage, establish residence, and proceed with a divorce action. Anyone who has gone through a divorce or practices family law, however, might recognize that the level of cooperation needed to pull this off would unlikely exist for a couple who has decided to call it quits. Further, there would be no possible incentive for the spouse holding the assets to agree to this.

Residents of more progressive states are not wholly protected either since one of the provisions of DOMA offers protection for a same-sex spouse who has gone through a divorce or is going through a divorce, and flees to another state to escape enforcement of any orders entered in the divorce action. So a spouse ordered by a New York Court to transfer half of her assets and pay alimony for 10 years, could easily decide to ignore that order, move to Pennsylvania, and start over.

In an opposite-sex marriage, the spouse remaining in New York would simply bring suit to enforce the court’s order and have it enforced in Pennsylvania. That spouse would eventually get the assets due them, as well as their regular alimony payments. Not so with a same-sex couple.

These scenarios can be avoided with a cohabitation agreement, but many who enter into marriage may not think such a document is necessary. And while there is cause for celebration and hope, the continuing arguments over same-sex marriage should include calls for divorce equality, as well.

Andrew Taylor is an attorney with Weber Gallagher Simpson Stapleton Fires & Newby LLP’s family law practice in Norristown.