The U.S. Supreme Court let same-sex couples marry-but breaking up is still very hard to do.
by Patrick Dunn
Published in March, 2016
The court's ruling in the case of Obergefell v. Hodges last summer was a boon for same-sex Michigan couples who'd been waiting to get married. It also brought long-awaited relief for those who'd previously wed in the handful of states where same-sex marriage was legal but faced obstacles if they wanted to split up.
Attorney Angie Martell says she's consulted with "a zillion" same-sex couples who want to divorce since the Obergefell ruling. "People were coming to me a year and a half ago and saying, 'What do we do?'" says Martell, whose practice specializes in LGBT issues. "In some cases I'd actually tell people, if they could, to wait until the [Obergefell] decision was rendered" to make the break.
Before Obergefell, Michigan not only banned gay marriage, it didn't recognize same-sex marriages performed in other states--so such couples couldn't get divorced here, either. In theory they could return to the states where they wed, but most states require couples to live there for at least six months before they file for divorce.
While the court's ruling solved that problem, LGBT divorce is still riddled with complications. In one recent case Martell consulted on, a couple who married in San Francisco in 2004 and then had their marriage voided by the Supreme Court of California the same year were pleased to learn that their still-strong marriage would again be recognized under Obergefell. But in some cases Obergefell, to use Martell's term, can "resurrect" marriages that neither partner wants any more.
Martell notes that a hypothetical individual who got married in San Francisco, separated from their partner after the court voided the marriage, and has since remarried someone else would now be a bigamist in the eyes of the law. When counseling couples, she says, "You have to really talk about: 'Have you ever been married to anyone?' 'Have you ever had a legal ceremony with someone?' 'Where has it been?'You really have to do a lot more homework as an
attorney than you would if marriages had been recognized all along."
Washtenaw County Trial Court judge Patrick Conlin says he hasn't seen "a huge onslaught" of gay divorce cases. But he notes that same-sex custody cases have become particularly "heartbreaking" post-Obergefell, as a biological parent in a separating same-sex partnership may under state law easily win sole custody of children of the partnership. "It highlights in my mind how tentative the status of non-married individuals has been for years," Conlin says.
In the same-sex divorce cases Conlin has heard since the Obergefell ruling, he says there are complications even in small matters such as the precaution of asking the female partner if she's pregnant. "If you get two women getting a divorce, there's no guidance," he says. "I just ask them both, 'Are you pregnant?' That's kind of an interesting change."
Conlin describes the current state of LGBT divorce law as "kind of a rough patch of transition," and Martell agrees, noting that "there's a lot more complexities that are going to come down the pike." She sketches a hypothetical future situation in which a same-sex couple who have commingled their resources for thirty years but have been legally married only five years, must determine how much of one partner's retirement fund--five years' worth, thirty years' worth, or somewhere in between--is shared under the terms of a divorce.
"We're just scratching the surface," Martell says.
This article has been edited since it was published in the March 2016 Ann Arbor Observer. An editing error that mischaracterized a comment by judge Patrick Conlin has been corrected.
[Originally published in March, 2016.]
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