Entries Tagged as 'same sex marriage'

More on Same Sex Divorce and Dissolutions

The Los Angeles Times reports on a ruling in the U.S. 9th Circuit Court of Appeals that could lead to the invalidation of the Defense of Marriage Act.  The Act, which I’ve written about previously, essentially allows states not to recognize same sex marriages performed in other states and also defines marriage for federal purposes as being only between heterosexual couples.

Judge Stephen Reinhardt of the U.S. 9th Circuit Court of Appeals ruled earlier this week that Sears — who married Levenson, a deputy federal public defender, last July — is entitled to the same spousal benefits that heterosexual couples employed by the department receive.

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Reinhardt’s ruling branded the Defense of Marriage Act unconstitutional. The 9th Circuit’s chief judge, Alex Kozinski, also weighed in on the subject last month, granting benefits to the same-sex spouse of a staff attorney for the court. But he stopped short of basing that decision on constitutional grounds.

Despite the prominence of the two judges, the rulings are legally meaningless for all but the two couples because they came in the court’s administrative dispute process, rather than in lawsuit judgments.

The 9th Circuit judges ruled in their capacity as dispute-resolution officials within the federal judiciary, whose employees are prohibited from suing in federal court.

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But legal analysts see the judges’ orders as an indication that the Defense of Marriage Act is unlikely to stand up to the constitutionality test if it reaches a federal court.

What this ends up meaning is unclear at this time.  For instance federal law’s Title VII does not include sexual orientation as a protected class in labor discrimination — whereas NJ’s Law Against Discrimination does — and the federal courts have not seen fit to add that protection.  But times change and so do court rulings (separate but equal was once the law of the land).  Stay tuned.

Same Sex Divorce in New Jersey

I’ve written previously about the issues in NJ about same sex divorce and dissolution.  NJ’s Attorney General’s office has taken the position that NJ courts should only grant civil union dissolutions even if the same sex couple in question was legally married in another jurisdiction.  On Friday, NJ Superior Court Judge Mary Jacobson granted a divorce in the case of Hammond vs. Hammond.

La Kia and Kinyati Hammond were married in British Columbia, Canada in 2004 (after years in a relationship) and then moved to Maryland.  In 2005, La Kia learned she had a terminal form of muscular dystrophy, was told she had two years to live, left Kinyati and moved with her daughter to NJ.  La Kia is now in a relationship with another woman and wants to be able to marry her in Canada before she dies.

Judge Jacobson found compelling the argument that authorities in Canada may not accept a dissolution of a civil union as equivalent to a divorce and thereby not allowing La Kia to be remarried.  Since La Kia is not a resident of Canada (but is a resident of NJ), she would not be able to receive a divorce in Canada.  Kinyati now lives in Delaware and did not respond to the filings.

The attorney general’s office has not decided if they will appeal the ruling.

Same Sex Divorce Issues

I’ve discussed some issues in civil union dissolutions in previous blog posts (here and here).  Today, the Washington Post has an article which talks about other elements of civil union dissolution (and same sex marriage divorce in Massachussets, the only state to formally call it marriage).  The article presents the case of two divorcing lesbians in MA who each gave birth to a child from the same sperm donor.

While the parties are litigating, a family court in Boston has come up with a Solomonic ruling, saying that each of the women can spend half the week alone in the family home with the children.

One same sex marriage divorcing male in MA noted:

“I wasn’t aware of how messy things were going to get.  The legal maneuvering we had to go through was enormous, and it was difficult to find attorneys who were willing to handle the issue because there just aren’t that many lawyers familiar enough with the law and how it affects a gay divorce.”

Since Federal law does not recognize marriage between two people of the same sex, distributing assets (normally a tax free event) is taxable.

Lawyers have found no shortage of creative solutions around the tax codes by swapping assets, setting up irrevocable trusts and parceling out years’ worth of payments in amounts that meet the tax threshold.

I’ve talked about how the length of a marriage or civil union is determined in a same sex context and the article talks about that too:

Massachusetts is an equitable-distribution state, and a major factor in determining the distribution of assets is the duration of the marriage. But gay couples are fighting that in court, contending they would have been married longer if it had been allowed. The argument is gaining ground with judges who have been willing in same-sex divorce cases to take account of the entire length of the relationship in deciding on division of assets.

“If a couple has been together for 25 years in Massachusetts, their assets would be divided 50-50,” said Elizabeth Zeldin, who has handled several same-sex divorces. “But a same-sex couple has only been married a maximum of three years, so do you treat it as a three-year marriage or a 25-year marriage? A lot of judges are now saying: Treat it as a long-term marriage.”

Same Sex Divorce In RI

A same sex couple who got married in Massachussetts, then moved to Rhode Island, had their petition for a divorce in Rhode Island’s courts denied by their Supreme Court.  In answering the question, “May the Family Court properly recognize, for the purpose of entertaining a divorce petition, the marriage of two persons of the same sex who were purportedly married in another state?”  In a 3-2 decision, the RI Supreme Court decided that “well-established principles of statutory construction would lead us ineluctably to conclude that the General Assembly has not granted the Family Court the power to grant a divorce in the situation described in the certified question…the role of the judicial branch is not to make policy, but simply to determine the legislative intent as expressed in the statutes enacted by the General Assembly. In our judgment, when the General Assembly accorded the Family Court the power to grant divorces from ‘the bond of marriage,’ it had in mind only marriages between people of different sexes.”