Breaking Up Gay Is Hard To Do

Best line:

The right to divorce isn’t as upbeat a topic as the right to marry…

While discussion of gay marriage tends to focus on equality and the right of every person, no matter what their sexual preference, to be part of a loving relationship, the fact is that marriage isn’t merely an “institution,” but a legal status.  And when loving relationships turn less loving than they once were, the ending of that legal status can only be accomplished by another legal status, divorce.

As states now recognize gay marriage, there is little doubt that it’s here, it’s queer and it’s not going anywhere. Get over it. That said, the flip side of the legal status is creating problems:

“The marriage system is a way we recognize and protect the commitments people make to their partner,” said James Esseks, director of the Lesbian, Gay, Bisexual and Transgender Project at the American Civil Liberties Union.

“Part of that system is creating a predictable, regularized way of dealing with the reality that relationships sometimes end,” he said. “Those are the times people are the worst to each other, and that’s why we have divorce courts. There’s got to be an adult in the room.”

For married couples living in states that do not recognize gay marriage, they similarly provide no means of divorce.

Even as the number of states legalizing same-sex marriage will soon grow to 16, most states — like Mississippi — refuse to recognize such unions or to help dissolve them. Gay couples who move to those states after marrying elsewhere face roadblocks if they wish to divorce, as do couples from those states who make a brief foray out-of-state to get married.

Often, such couples in non-recognition states would have to move back to the state where they were married and establish residency in order to get divorced — an option that can be unworkable in many cases.

What this reflects is the clash of the regulatory state and people’s reality.  It’s still fairly problematic for a couple to get a divorce, even with the advent of no-fault.  There are forms to complete, usually requiring a lawyer at some expense, all to end an intimate relationship that the state has decided is so important that it gets to have a say.

The old rule is that the state has an interest in marriage, for the sake of stability and the children, that it gets to decide how divorce happens and when it’s allowed.  So what if you and your spouse are more inclined to slit each other’s throat than sit down to dinner? You must be able to convince a judge that you deserve to be divorced before the state will grant you one.  And, of course, this excludes all issues of property and children, which just totally muddies the waters.

While the issues arise in the context of gay marriage, the questions apply to divorce in general. The whole “sacred institution” concept that has long been a foundation for the legal view of marriage is an archaic reminder of our confused relationship between religion and secular government.  When we took it for granted, that was one thing, but now that it’s on the table, it’s time for some scrutiny.

Most weddings are performed by clergy, and reflect our quaint desire for the pageantry of the wedding ceremony.  But then, it doesn’t count unless we purchase a license from the state.  And the state has to decide whether it feels like giving a license, provided that they like the sex of your partner.  Who made it the state’s business, anyway?

And when it comes to dissolving the legal status of marriage, what business does the state have in deciding whether your reasons are good enough?  If you want to dissolve a business with a separate legal entity, you do so. Fill out the forms, pay the fee (which the state always has an interest in) and, boom, done.

The solution to the gay divorce issues is hardly a difficult one to manage, even for those states that want to adamantly remain in the caboose of marital freedom.  The law need not acknowledge or favor marriage of any sort. It need only provide for divorce of any marriage legally recognized in any state. No big deal. It’s just the termination of a legal status.

But then, why should anybody, gay or straight, have to prove to the satisfaction of the state that they’re worthy of divorce anyway?  Go to the local county clerk, fill out the form that says you swear that you really, really want to be divorced, pay the fee (which the state always has an interest in), and so you should be.

Even though we’ve all gotten used to the state regulating divorce, perhaps the time has come to rethink what business the state has in fostering the “until death do us part” crap. Just as marriage is a personal choice between two people, so too is divorce.  It’s not that we think it’s a good thing, but that we really don’t need the state to validate our choice to dissolve a marriage any more than we need the state to approve our choice to enter into one.

7 comments on “Breaking Up Gay Is Hard To Do

  1. Fubar

    The solution to the gay divorce issues is hardly a difficult one to manage, even for those states that want to adamantly remain in the caboose of marital freedom. The law need not acknowledge or favor marriage of any sort. It need only provide for divorce of any marriage legally recognized in any state. No big deal. It’s just the termination of a legal status.

    Agreed on the general proposition. But I can see one argument against it from the no-way-no-how opposition: Do we want to burden the courts of our state with even more marriage dissolution, property division and child custody cases?

    Empirically the opposition argument is marginal; but it makes some sense in abstract principle. By the opposition’s own usual statistics about the occurrence frequency of teh gay in populations one could estimate the marginal additional burden on courts. So the opposition could at least be held to account by their own previously proffered numbers.

    A more likely opposition would be based on some moral proposition. In that case, if one is opposed to gay marriage, why would one oppose a legal procedure that would reduce the numbers of those marriages in effect?

    The larger question of why state involvement in the first place is above my pay grade. How about because Henry VIII?

    1. SHG Post author

      The issues of support, division of assets and custody exist independent of the dissolution of marriage issue. Divorce is easy now (as opposed to Anne Boleyn), or should be. Aside from legal fees and court costs, there is no reason why it shouldn’t be ministerial.

      So if the problem of divorce is solved with a rubber stamp, the collateral issues show up on the docket one way or another.

  2. Lurker

    I’d like to disagree with you on this issue. I live in a country where there is only a no-fault divorce. It is easy to get: you go to the court and file a unilateral (or mutual) application for a divorce. This begins a six-month waiting period. At the end of the waiting period, either spouse may re-establish the application either unilaterally or mutually. If no re-application is filed within a year of the original, the case is closed. If a re-application is filed, the divorce is automatically granted as a clerical matter by the clerk of the court. The court handles the issue at a session only if there are child care issues or the spouses have not agreed upon property division. Usually, during the six-month cooling-off period, the agreement on these matters is reached without going to court. (The reasons for divorce are not taken into account in the handling of these matters.)

    However, unlike you state, the issues of dividing property and child custody are properly handed with the divorce proceedings. The marriage is essentially a state service for couples who wish to get a very handy and equitable legal contract package on the issues of family life. When it is dissolved, all the legal relationships that were based on the life as a couple need to be re-arranged. This is most prudently done at the same time that the divorce is granted, if the spouses have not reached a amicable solution (that is consistent with child welfare) without court interference.

    1. SHG Post author

      I have no issue with how you do it, including the cooling off period. And the collateral issues should be addressed at the time of divorce and court intervention is appropriate. The only issue I address is that the state shouldn’t be in the business of deciding whether a couple “deserves” a divorce. Everything else is the same.

  3. Pahdraig

    It took me awhile to dig this up. In 2003 there was an article posted to FindLaw by Joanna Grossman that had a small paragraph about this issue (no links I know). I remember thinking at the time that it was a sensible way to handle this issue. The paragraph:

    “Meanwhile, according to The New York Times, a judge in West Virginia quietly dissolved the civil union of a lesbian couple, writing only that they had “irreconcilable differences” and were “in need of a judicial remedy to dissolve a legal relationship created by the laws of another state.” ”

    Assuming any given state’s higher courts haven’t expressly forbidden it, what’s to stop lower court judges from just quietly dissolving these relationships? I’m not an attorney (so I could be being naive), but it doesn’t seem to me that there’s any downside. The judge isn’t acknowledging it as a legal relationship in their state, and I have a hard time imagining the state coming back and saying you can’t do that, undissolve that relationship.

    1. SHG Post author

      There is no legal downside. It’s now just a matter of political influence precluding the dissolution, and there is little opportunity for a judge to do anything “quietly” that involves something so controversial.

  4. John Neff

    Prior to the 2009 Varnum v. Brien decision on gay marriage in Iowa a district court judge dissolved an out-of-state gay marriage of a gay couple that lived in Iowa. There were no legal problems with doing so but there were serious political problems for the judge. I am not aware of any similar political problems since the Varnum v. Brien decision as far as divorce is concerned. However three of the supreme court judges were not retained where the district court judge whose decision was unanimously affirmed was easily retained but he was in a liberal district.

    It appears that the political problems with repect to gay marriage are fading but they could flare up again if there is a high profile case.

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