Divorce Wisdom: Divorce Challenges for Same Sex Couples

On the eve of the recent surge of states legalizing gay marriage, I was featured in a Detroit Legal News “Asked and Answered” article, where the discussion focused on the struggles that married, gay couples face when they want to divorce. Issues like the division of the marital estate, custody and support are challenges that many divorcing couples must face but same sex couples, living in a state that does not recognize the legality of their marriage, must confront these issues without the support of the family law court system. Gay marriage is not legal in Michigan but there are plenty of same sex couples living in our state who have been legally married in one of the 19 states or Washington D.C. where same sex marriage is recognized. The issue of whether to legalize gay marriage is currently being considered by the Michigan Supreme Court. If you are a resident of Michigan or any of the other states that do not recognize same sex unions, legally married to a same sex spouse, the only way to end your marriage in the eyes of the law, currently, would be to move to a state where your marriage is seen as legal. Once you move to a state that will allow you to get a divorce, you will have to meet the residency requirements of that state, which usually takes 6 months, before you are considered a resident of that state and able to file for divorce there.

But what should you do if you don’t want to leave your home, friends, family and career to move to a new locale just to legally end your marriage? Now that divorce is legal in over one-third of the States, there are many married gay couples, desirous of divorce, facing just such a challenge, simply because they live in a state that won’t let them divorce. Given the fact that all Americans are citizens of the same country, the inequality of this matter is overwhelming. Certainly, same sex married couples that live in a state that has legalized gay marriage are afforded much more equality with their non-gay counter-parts, than that afforded to gay couples residing in places like Michigan, Arkansas, Alabama etc. Therefore, same sex spouses who wish to uncouple, fairly and equitably, but don’t want to relocate to a state that allows gay couples to divorce, are forced to find a way to do so while remaining in the legal purview of the state in which they reside.

I recently had a case, just like this, come across my desk. Two young professional women, one an investment banker and the other a doctor married in Massachusetts while residing in Michigan. Both had prosperous careers, although the partner involved in finance earned significantly more than her partner. In the first few years of the couple’s marriage, they had managed to buy a lovely home worth $700,000 and save a significant sum of money for their future. After 4 years of marriage the couple decided to call it quits. Both had worked hard to establish themselves professionally in the Detroit area; therefore, although it was a mutual decision to end the marriage, neither party wanted to move out of state and establish residency elsewhere to obtain a divorce. After being physically separated for about 6 months, the banker of the pair wanted the peace of mind of knowing that all of her hard work and the assets she was accumulating after the parties’ split, would not be divided with her estranged spouse, when some day the parties could actually obtain a divorce. My solution to this quandary, although not perfect, was to create a separation agreement/contract for the couple along the same lines as a post-nuptial agreement. While a state like Michigan might not recognize a postnuptial agreement as valid between a same sex married couple, since they don’t recognize the marriage in the first place, Michigan and states like it will recognize a valid contract entered into between two competent adults. Further, the separation agreement can be enforced in a different state that allows same sex couples to marry, if, in the future, one or both of the parties moves to a state that has legalized gay marriage. Finally, if Michigan does pass a law allowing gay marriage, the couple can enforce their separation agreement down the road when the law changes. When entering into a separation agreement in a state with no gay marriage laws, the document should contemplate all of the issues one would encounter in the event of divorce, including division of assets, spousal support, attorney fees, division of debts, whether fault should be considered, etc. The document should also include protection in the event that a court sees only part of the document as legitimate. Sample language to consider could include some of the following:

“The parties understand that it is not against public policy in the state of Michigan for two people to enter into a contract setting forth the disposition of their assets and liabilities even though the state of Michigan does not legally recognize same sex marriage…

“The parties recognize that their marriage may be terminated by way of divorce if one of the parties becomes a resident of a state that legally recognizes same sex marriage.

“In case any provision of this Agreement is held to be contrary to or invalid under Michigan contract law, or contrary to or invalid under the law of a jurisdiction that legally recognizes same sex marriage, such illegality or invalidity shall not affect, in any way, any other provision of this Agreement, all of which shall continue in full force and effect in any country, state or jurisdiction in which such other provisions are deemed legal and valid.”

It is unsettling, to say the least, to live in a state that does not consider your marriage to be lawful, while, at the same time, knowing that the state could change its position at any time, thereby changing the rules on the impact your marriage to an estranged spouse may have on your life in the future. Use of a separation agreement/contract in uncertain times is your best defense, short of moving away from your home and establishing residency in a state where you can legally get divorced. The latter is simply not a practical, fair or viable, option for most couples whose residency exists in a state where their marriage rights are not protected.