- The Washington Times - Monday, May 24, 2004

SAN FRANCISCO — The same-sex “marriage” movement is about to give new meaning to “gay divorcee.”

One of the messiest breakups family-law lawyer Cheryl Sena has witnessed had all the hallmarks of a bitter, “who-gets-what” divorce.

What made the case especially difficult, even as ugly splits go, was that the feuding partners were men. As an unmarried couple, community-property laws didn’t apply to them.

“In family law and divorce, there are rules for everything. You may not like the rules, but you can plan,” said Miss Sena, who represents both homosexual and heterosexual clients in San Francisco. “With these same-sex couples, it’s luck of the draw.”

With Massachusetts sanctioning its first same-sex “marriages,” many homosexuals have realized that of all the rights and responsibilities that come with matrimony, divorce laws are among the most pivotal.

The ability to receive alimony, guaranteed parental rights and an assumed stake in the financial fruits of the relationship are just a few of the divorce benefits long denied same-sex couples.

Because divorce, like marriage, is an institution governed by states, the experience same-sex couples face when their relationships end varies around the country.

Especially when children are involved, judges in liberal-leaning states such as Massachusetts, California and Washington have been increasingly willing to apply the principles of their respective divorce laws, if not the laws themselves.

But courts in more conservative states like Texas and Virginia have been loath to do anything that would confer maritallike standing on same-sex unions, even when both parties have had lawyers draw up detailed contracts.

“At the present time, it is a very mixed sort of picture,” said Art Leonard, a professor at New York Law School who monitors court rulings involving homosexuals. “If they’ve done gay family planning with a lawyer — living-together agreements, joint-tenancy agreements — there might be something there for a court to interpret. The problem is when people don’t do an agreement, they are just living together and make these informal oral agreements as they go along. There is basically nothing there as far as a legal framework.”

Vermont, which since 2000 has granted spousal rights to same-sex couples with civil unions, is the only state other than Massachusetts where homosexuals are treated the same as married couples for the purposes of divorce. In California, a law scheduled to take effect Jan. 1 would give the state’s 25,000 couples registered as domestic partners access to family-court proceedings when their relationships end.

The change will have the clearest benefits for lower-earning partners in same-sex unions, predicted Frederick Hertz, a real estate lawyer in Oakland, Calif., who specializes in resolving legal messes in the homosexual population.

In both Massachusetts and California, family-law lawyers have hosted workshops to make same-sex couples aware of the less-romantic consequences of marriage — information that has made some think twice about rushing to the altar.

Nevertheless, lawyers anticipate it won’t be long before they are representing a new class of divorcing couples.

“From what I’ve observed, there are two categories who are going to get married — people who have already been together a long time, and the hopefully smaller category that makes the same mistakes heterosexuals make,” said Boston lawyer Joyce Kauffman. “They will meet this summer, fall in love in Provincetown, find a justice of the peace and get married. Those are the couples I’m worried about.”

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