Legal Effects of Same-Sex Marriage and Divorce

By Attorney Gregg Herman
March 21, 2012

Recently, a New York became the sixth, and largest, state, plus the District of Columbia, to recognize same-sex marriage.  If the current trend continues, more and more states will also legalize two men or two women entering into the same legal relationship as possible for a man and a woman.

Before we go any further, a disclaimer: It is not the purpose of this article to take a position as to whether this legislation should or should not be enacted by a state.  Certainly, all divorce lawyers, from strictly a business point of view, should support such legislation.  As the joke goes, the leading cause of divorce is marriage.  Perhaps for that reason, some proponents of same-sex union seek only the legal advantages of marriage, such as spousal employment benefits (especially health insurance) without requiring a full-fledged divorce action upon termination of the relationship.  This articles does not seek to editorialize, but only to comment on the legal ramifications and discuss the pros and cons of the different means of ending a relationship.

Absent full legal status arising from a marriage, same-sex couples have the same rights-or, lack of rights-as opposite sex couples who cohabit.  Under Wisconsin law, for example, cohabitants may have a civil cause of action for unjust enrichment upon termination of the cohabitation.  Watts v. Watts, 137 Wis. 2d 506, 405 N.W.2d 303 (1987); Lawlis v. Thompson, 137 Wis. 2d 490, 405 N.W.2d 317 (1987).  The remedies which can be sought are limited to the equivalent of a property division award.  Unlike the termination of a marriage where maintenance or alimony may be available to a non-working spouse, in most states, a “palimony” award is not allowed; so for example, if one member of the couple took on the traditional “homemaker” role during the cohabitation, any increased earnings of the other partner cannot be compensated.

Ending a Non-marital Relationship

The process for ending a non-marital relationship is significantly different, as well.  In a marital relationship, even if there is no maintenance claim and if the property division issues can be worked out informally between the parties, the legal process of divorcing is still necessary.  While many parties in these circumstances can proceed pro se, the forms can be daunting and the process confusing.  On the other hand, a cohabitating couple can simply separate and no legal process is required.

Where there is disagreement (not uncommon when the emotional levels escalate) when the union ends, the divorce legal process is well recognized with forms widely available.  On the other hand, a cohabitation lawsuit is a civil case without standard forms and processes.  As a result, if lawyers are needed in a cohabitation case, the cost may be significantly higher as drafting pleadings is more expensive than simply filling in a form.  In addition, as a civil lawsuit, jury trials may be available, which is not the case in most states for family law actions.  A jury trial would significantly increase the costs of the legal process.

Property Division

Property division differs significantly between the two processes, as well.  For married couples, depending on the state, there are typically community property or equitable distribution statutes which create a template for who gets what.  Absent such statutory schemes, the division of property can be more difficult to ascertain and settle.  For example, absent the availability of QDROs for dividing retirement plans, equal divisions of property may be impossible without incurring significant tax ramifications.

Children

When same-sex couples have children, the legal analysis is even more complicated.  If the couple is married, certain presumptions generally apply and courts could award custody and visitation based on a “standard” analysis (with no fear of being accused of gender preference!).  Absent recognition of a marital status, however, the biology becomes critical.  Typically, where one partner is genetic parent, the other partner, absent an adoption proceeding, does not have the legal presumptions available to a married spouse.  Rather, the non-biological partner may have to petition for visitation based upon the relationship with the child.

Debts

The allocation of debts may differ significantly, as well.  For a married couple, any debt incurred during the marriage may allow the creditor recourse against either couple, especially in community property states. No such recourse would be available if the couple were merely cohabitants.

Legal Ramifications Beyond Family Law

Of course, the legal ramifications extend well beyond family law.  Marriage affects health insurance eligibility, social security rights, inheritances, hospital visitation, worker’s compensation benefits, consent for medical treatment and much more.  Some of these benefits can be extended by a domestic partnership law enacted by an individual state.  Particularly in involving federal law like retirement plan divisions and social security benefits and entitlements, they cannot be extend without amendments to existing statutes.  Notwithstanding the increasing number of states extending such rights, do not hold your breath for the federal government to change existing law in today’s political environment.

There is no perfect solution.  For all of the benefits of marriage, a same-sex couple would be required to incur all of the detriments of divorce if the relationship fails.  On the other hand, absent recognition as being married, substantial benefits are not available.  Trying to have one’s cake and eat it too (e.g., domestic partnership or civil unions) may leave one quite hungry as the middle road does not extend the full panoply of rights, either.

To some proponents of same-sex marriage, it does not matter.  They want the same treatment under the law as heterosexual couples, notwithstanding any attendant costs.  For a personal philosophy, that’s perfectly valid.  From a legal viewpoint, however, the saying which comes to mind is: Be careful what you wish for, it might come true.

To opponents of same-sex marriage, the arguments tend to rely on moral and sometimes religious grounds.  The effect, however, is to deprive certain couples of access to well-recognized legal procedures at a significant cost.

No matter what the law says, same-sex couples will cohabitate.  The legal effect of such cohabitation should be derived by a comparison of the benefits and drawbacks of each option.

This article originally appeared the Spring, 2012 edition of the American Journal of Family Law.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.