MARY LOUISE KELLY, host:
Of course all those marriages raise questions about divorce. Since most states and the federal government don't recognize gay marriages, many same-sex couples have no way officially to split. NPR's Tovia Smith reports.
TOVIA SMITH: They say that breaking up is hard to do. But for many gay and lesbian couples it can actually be impossible.�Take, for example, an out-of-state couple who goes to Massachusetts to marry or one who lived in-state and then moved away.�Those couples can't divorce in Massachusetts, because you have to be a resident, and if their home state doesn't recognize gay marriage, they can't divorce there either.
Ms. LISA LUNT: I'm legally stuck. It really is - it's a mind-bender.
SMITH: Forty-five-year-old Rhode Island resident Lisa Lunt split up nearly three years ago from the woman she married in Massachusetts and has been trapped ever since in an unhappily ever after.�
Ms. LUNT: It's strange. It puts me in an emotional limbo and a legal limbo. I can't just ignore it.
SMITH: You're married.
Ms. LUNT: Legally, yes.
SMITH: It's like - I keep thinking this song, you know, you can check out any time you like, but you...
Ms. LUNT: You can never leave.�
SMITH: The consequences could be serious. If Lunt wants to marry again one day, would that be polygamy?�And legally, her ex could claim half her retirement. The numbers are hard to nail down, but plenty of other same-sex couples are also unable to untangle their property or children.
AMY: I lost my baby. I lost my child and there's nothing I can do about it.
SMITH: This woman we'll call Amy, married her partner in Connecticut and returned to start a family in their home state, where gay marriage is not legal. But just months after their baby was born, Amy's wife wanted out, and no court would hear Amy's claim to the child who carries her last name.
AMY: And it was heartbreaking. There's been a lot of tears shed.
SMITH: Amy didnt want her name used in the report because she's trying to get a court to grant her divorce on the QT. No judge would touch custody or property disputes, but Amy's hoping a sympathetic one might at least give official stamp to an uncontested split if it's under the radar.
AMY: It is very much a gamble, Im at the whim of a judge, but it is the best shot I have, and it would make such a difference to have that peace of mind.
SMITH: In the past, however, judges who've been discovered to have gone out on a limb by granting gay divorces have been challenged and end up overturned.
Ms. ELIZABETH SCHWARTZ (Attorney): That's why we are begging not only for marriage but for divorce.
SMITH: Attorney Elizabeth Schwartz specializes in same-sex divorces in Florida.
Ms. SCHWARTZ: I've screamed about this for years. I mean I can't tell you how many couples I know who dont even get to have their day in court. You know, they just have to walk away and they dont have another option and that's really unfair.
SMITH: Even in states that do recognize gay marriage, gay divorce can still be a legal mess since the relationship is not recognized by the federal government or the IRS.
So for example, alimony payments are usually tax-free. But, Massachusetts attorney Joyce Kauffman says, the IRS has no guidelines on what to do if you're a gay divorcee.
Ms. JOYCE KAUFFMAN (Attorney): Many people are just keeping their fingers crossed, hoping they don't get audited.
SMITH: Another tricky issue in gay divorce is the length of a marriage. Courts divvy things up very differently when a couple has been married two years or 20. But if a couple was together for a decade before marriage was even legal, how many years should count? Some judges are now beginning to consider unmarried time together, but Kauffman says that can be a nightmare.
Ms. KAUFFMAN: I mean youd be amazed at how quickly those two decades that you were together before you got married like become like we were roommates, we were friends, because the longer youve been married the more likely it is your assets are going to be divided pretty much 50-50 and people do not want to do that.
SMITH: So in any state attorneys say, don't skip the pre-nup.
There have been efforts in states that bar gay marriage to at least enable gay divorce, but it's been fought by those who see it as a slippery slope. That infuriates folks like Lisa Lunt, the would-be divorcee from Rhode Island. It makes no sense she says for opponents of gay marriage to keep people like her from ending one.
Tovia Smith, NPR News.
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