Same Sex Divorce Riddled With Complications

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A Texas appeals court ruled last month that a gay couple who got married in Massachusetts could not get divorced in Texas. According to the ruling, granting a divorce would implicitly affirm gay marriage, which is not legal in Texas. Paul Thorndal, a family law lawyer in San Francisco who has represented dozens of gay couples in divorce proceedings, discusses the Texas case and details some of the unique legal and emotional issues faced by gay divorcees.

TONY COX, host:

I'm Tony Cox. This is TELL ME MORE, from NPR News. Michel Martin is away.

In a few minutes, you're in back-to-school mode. For the sake of your kids and yourself, you've got to be ultra-organized. Our guest might be able to help.

But first, thousands of same-sex couples have tied the knot in recent years. Five states and the District of Columbia allow gay marriage, and California's law remains in legal limbo. Today, another side of the story: What happens when a gay couple wants to get divorced? Can the couple end the marriage in a state that does not recognize the marriage?

Last week, a Texas appellate court said no, that a gay couple married in Massachusetts could not get divorced in Texas, because by allowing the couple to do so would affirm a legal union. We want to talk about the significance of that Texas case and also learn a bit more about the challenges gay married couples face when and if they choose to seek a divorce.

I'm joined now by Paul Thorndal, a family lawyer in San Francisco. He specializes in the legal needs of non-traditional families, and he has represented dozens of same-sex couples in divorce proceedings, joining us now from the Bay Area. Welcome, Paul.

Mr. PAUL THORNDAL (Family Lawyer): Thank you. Thanks for having me.

COX: First of all, let's talk about the Texas case. What did the appellate court rule specifically, and how significant is that ruling?

Mr. THORNDAL: To my understanding, the Texas court ruled that because of their constitutional amendment that's their Defense of Marriage Act, the court ruled that the trial court could not recognize the marriage to take jurisdiction of a divorce, so that they could not dissolve the marriage because they don't recognize that it exists.

COX: In the state of Texas. Have you represented couples that have been married in other states yourself?

Mr. THORNDAL: I have. Yes.

COX: Do any states that ban gay marriage allow for gay marriage divorce?

Mr. THORNDAL: New York does not permit same-sex marriage in the state of New York. The question is: Does the state recognize marriages that are validly entered in other places? So, New York will recognize validly entered marriages, even though they themselves would not have allowed the people to marry in the state of New York.

COX: I think it's a little confusing to try to keep up with it. So if you get married in a state, a same-sex marriage in a state that allows it, in that state, then, there is no legal barrier, is there, to getting a divorce?

Mr. THORNDAL: Correct. The question is being in a state that will recognize it. The problem deals with portability. People travel to get married. They can get married - a lot of people go to Massachusetts. They traveled to California for the six months that it was allowed here. But the problem with each state having its own laws about recognition of marriages for same-sex couples is that you can go somewhere and get married, but a lot of places are not going to recognize that it's valid.

COX: There's been a great deal of news coverage of the gay marriage issue, not so much about gay divorce. Aside from where gay couples can get divorced, let's talk about what happens when they do. Are there specific legal issues that gay couples face that straight couples may not face?

Mr. THORNDAL: Yes. There are certain things that are different, and really, they stem from federal - in California, anyway, they stem from federal non-recognition of the marriage. Men and women, married, can have unlimited transfers of properties between one another that are not taxable because they are inter-spousal transfers.

In divorce, men and women can freely exchange their property incident to dissolution, and the IRS does not consider that a taxable event. The same is not true, necessarily, for same-sex couples, so you have to be careful with the tax analysis. You can't divide retirement accounts if they are federal benefit plans. They cannot be divided in the same way because the federal government says that a marriage is between a man and a woman.

COX: If you're just joining us, this is TELL ME MORE, from NPR News. I'm Tony Cox, sitting in for Michel Martin. We are talking about divorce in the gay community. And we are joined by Paul Thorndal, a family law lawyer in San Francisco.

There are social consequences to these divorce issues, as well, are they not? And what I'm thinking about - in fact, let me play a clip for you. This is a conversation that we had with the singer/songwriter Melissa Etheridge a while back. She talked to us about ending her domestic partnership with her longtime partner, Tammy Lynn Michaels.

Ms. MELISSA ETHERIDGE (Musician): Often, I feel like I'm letting a whole community down. It's, like, oh, I'm sorry, guys. I want to be your hero. I do. Heroes fall, and that's how heroes learn. And I'm just doing the best I can.

COX: It leads to the question, Paul, whether or not gay couples who marry feel any additional pressure to try to maintain the marriage given all of the political and social ramifications surrounding this issue.

Mr. THORNDAL: Gay people are not unique to feeling shame when relationships end. A lot of people feel, when they have been married, that it's very difficult to face up to their families and friends when, suddenly, they're getting a divorce - sometimes a long time after they married, sometimes a short time.

For certain gay couples, I do know they fought very hard for gay marriage. And to watch their relationships fail, then, and have to go through a divorce process, yes. They do often express, as Melissa did in that quote, a feeling that they're letting the community down.

COX: What about custody issues? We talked a little bit about the pension problem that gay married couples have with regard to federal standards. But when it comes to children in a gay marriage or relationship, what do the courts say about that?

Mr. THORNDAL: Well, there, I think it's really important to emphasize that it depends on where you are. Here in California, I'm very happy that same-sex couples have a lot of very strong protections, both around same-sex marriage and domestic partnership, but separately around parentage, acknowledging the parental relationship that a non-biological parent in a couple has. But that is not true everywhere. And it is not normally true in heterosexual marriage breakups that there is a fight about who the legal parents of the children are, and that does, unfortunately, sometimes happen in divorce for same-sex couples.

COX: In terms of your practice, are you seeing an increase in the numbers of people who are gay couples coming to you to handle their divorces?

Mr. THORNDAL: Yes and no. The issue in California, of course, is that we have an array of types of legally recognized unions. So there are people - 18,000 couples who were able to marry in that window of time in 2008. There are other thousands of California residents who had legally married in other places. But still, marriage is relatively a new concept. And so, yes, we are seeing an increase, but I think over time, we will see the divorce levels in the LGBT community come pretty close - in my guess - to where they are in the heterosexual community.

COX: Is it your experience that those gay couples who are contemplating marriage now are looking at it with new eyes, given the reality that divorce is now creeping into marriages in the gay community, as well?

Mr. THORNDAL: I think as it becomes more normal - new eyes, yes. I suppose for the gay community it would be new eyes. But as I see it, they're beginning to look at marriage the way the rest of society looks at marriage. And now that they are given this choice, they're really thinking about: Do we want to marry, and what does that mean? Where they're not rushing out to do something. I think as something becomes more established, they're becoming more like the traditional community.

COX: Paul Thorndal. He is a family law attorney at the Wald Law Group in San Francisco. He joined us from the Bay Area. Paul, thank you very much.

Mr. THORNDAL: Thank you.

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