Dissolving a Same-Sex Marriage

A Double-Edged Sword

Vermont's grant of civil-union status to all comers, regardless of their state of origin, has turned out to be a double-edged sword. On the one hand, it allows couples to legally declare their commitment to one another and sometimes to gain certain rights on their return to their home states. On the other hand, the law incorporates the same residency requirements for dissolution of civil unions as is found in Vermont's divorce law: The state will not take jurisdiction over the case unless at least one party has resided in the state for 6 months and continues to reside there for the following 6 months, until divorce or dissolution is finalized. Because all 50 states grant full faith and credit to marriages entered into in Vermont, heterosexuals who are married in Vermont can move to other states and obtain divorces wherever they reside. Those who enter into civil unions and then return to live in their home states may find that if they want to dissolve the relationship, one or both of them will have to move to Vermont for a year.

Dissolution of the Civil Union Outside Vermont

To date, no reported application for divorce has been made in New York by same-sex partners married in foreign countries, or by partners registered under Vermont's civil union laws. A handful of courts in other states have tackled the issue, however, and most of them have declared that between gay partners, there can be no such thing as marriage or marriage-like legal status, and therefore no divorce or dissolution will be granted. So, what will the New York courts do when they are eventually faced with the various family law issues that will undoubtedly arise from some of these unions? A look at what other states' courts have done may be instructive.

Hawaii

In one past attempt to legalize same-sex marriage, several plaintiffs brought suit in Hawaii seeking a declaration that refusal to issue marriage licenses to same-sex partners violated the equal protection clause of the Hawaiian Constitution (Haw. Const. art. I, ' 5). The plaintiffs won, but while the case awaited appellate review, the state legislature took action by amending the state constitution. The amendment granted the legislature the power to preserve marriage for partners of opposite sexes only. The electorate ratified the amendment in 1998. On appeal, the Supreme Court of Hawaii held that the marriage amendment to the constitution validated the state's law limiting the granting of licenses to opposite-sex couples. Baehr v. Mike, 92 Haw. 634; 994 P.2d 566 (1999).

Texas

In a case filed in Beaumont, TX, petitioner John Anthony sought dissolution of his Vermont-sanctioned civil union to Russell Smith. Judge Tom Mulvaney initially granted the requested relief March 3, 2003, making Texas temporarily the first state outside Vermont to recognize Vermont's civil unions. However, shortly after the decision was entered, the state's Attorney General, Greg Abbott, petitioned the judge to reconsider, arguing that a divorce could not be granted where no marriage had ever existed. Judge Mulvaney was persuaded by the Attorney General's argument, vacated his ruling and ordered a new trial. Before trial could take place, however, Smith voluntarily withdrew his petition.

Connecticut

An appellate court in Connecticut refused to recognize a Vermont civil union as a marriage, and so denied a petition for divorce filed there by Glen Rosengarten, one of the founders of supermarket chain Food Emporium. Rosengarten v. Downes, 71 Conn. App. 372; 802 A.2d 170, 7/30/02. The court was persuaded to come to its decision by the fact the state legislature had had two bills before it in 2002 ' one authorizing same-sex marriage and the other permitting same-sex civil unions ' but had not acted on them. This, the court found, evidenced a legislative intent not to authorize same-sex partner unions. In addition, no other legislative or common law of the state supported jurisdiction by the Superior Court. The case was up for appeal, but Rosengarten died before the appeal could be heard.

Georgia

In Georgia, in the case of Burns v. Burns, 253 Ga. App. 600; 560 S.E.2d 47, 1/23/02, male/female married couple Susan and Darien Burns obtained a divorce and entered into a consent decree visitation agreement mandating that neither parent would be allowed to have the couple's children for overnight visits if he or she were cohabiting with an adult to whom he or she was not married. Some time later, shortly after the Vermont civil union law went into effect, Susan Burns and her female partner went to Vermont to be legally joined in a civil-union ceremony. When they returned to Georgia, Burns' children visited her overnight in the home she shared with her partner. Ex-husband Darien Burns moved for a finding of contempt, charging violation of the consent decree.

Ms. Burns asserted that she and her partner's civil union was equivalent to a marriage, and therefore she was not in violation of the agreement. Nevertheless, the Georgia Court of Appeals' three-judge panel unanimously concluded that Ms. Burn's ceremony had created only a civil union, not a marriage, and that her consent decree specifically required marriage before the children would be allowed to stay overnight with her and another adult in the home. The judge also found that Georgia's Defense of Marriage Act (Ga. Code Ann. ' 19-3-3.1(a)), which defines a marriage as being between one man and one woman only, precludes unions such as Ms. Burns' from being recognized in that state. In addition, the court noted that the Federal Defense of Marriage Act (1 U.S.C. ” 7; 28 U.S.C. ” 1738C) has declared that a marriage is a union between a man and a woman, and that no state shall be 'required to give effect' to a same-sex union; therefore, Georgia retained the constitutional right to deny full faith and credit to same-sex marriages solemnized in other states.

West Virginia

And finally a West Virginia Family Court judge has issued a divorce to a lesbian couple united in Vermont, but that decree was issued in an unreported case: No court in any state has issued a divorce to a couple united in a Vermont civil union in a possibly precedent-setting case.

The Langan Case

As is obvious from the foregoing cases, one of the primary problems for couples joined under Vermont's statute is recognition of their unions when they return to their home states. Dissolution of the partnerships has precipitated the most courtroom activity, but as in the Georgia case, it can also become an issue in custody and child visitation cases. One case has opened up for speculation the question of whether New York's courts will fall in line with other states' family courts, or will buck the trend and recognize out-of-state civil unions (or foreign same-sex marriages) as institutions requiring provision of rights similar to those conferred by marriage. In that case, Langan v. St. Vincent's Hospital of N.Y, No. 11618/02, Sup. Ct. of New York, 2003 N.Y. Misc. LEXIS 673, 4/18/03, a New York court held that a plaintiff who was joined with his same-sex partner in a Vermont civil ceremony had standing to sue for the wrongful death of his partner due to medical malpractice.

The limited issue presented on the motion and cross-motion in Langan was whether, under principles of full faith and credit or comity, plaintiff John Langan's status as a legal partner of Neal Spicehandler in a civil union solemnized in Vermont entitled him to recognition as a 'spouse' under New York's wrongful death statute. Defendant hospital had moved for dismissal, claiming that plaintiff, as a person unrelated to the deceased, had no standing to sue for his partner's wrongful death or for medical malpractice. The court noted that under New York law as it now stands, if plaintiff were a registered domestic partner, he would be able to succeed to a rent-controlled apartment as a 'family member,' would be able to recover had his partner been lost in the events of 9/11, would be eligible for the derivative employment benefits of a city or state employed partner ' including death benefits ' would be eligible to adopt his partner's biological child and would be entitled to be free from discrimination on the basis of sexual orientation under the civil rights and executive law. Previous to this case, however, he would not have been able to recover as a spouse under the wrongful death statute, based on the holding of Raum v. Restaurant Assoc., 252 AD2d 369, app dsmd 92 NY2d 946. However, at the time Raum was decided, there was no state-sanctioned union equivalent to marriage anywhere in the United States. The court in Langan found that '[p]assage of the Vermont civil union statute provides a basis to distinguish Raum.'

With respect to marriages entered into in sister states, the Langan court noted that New York adheres to the general rule that 'marriage contracts, valid where made, are valid everywhere, unless contrary to natural laws or statutes.' Shea v. Shea, 294 NY 909. And, unlike 35 other states, New York has not enacted a version of the Federal Defense of Marriage Act. Therefore, the Langan court held that under principles of full faith and credit and comity, and following authority that advances the concept that citizens ought to be able to move from one state to another without concern for the validity or recognition of their marital status, 'New York will recognize a marriage sanctioned and contracted in a sister state, and there appears to be no valid legal basis to distinguish one between a same-sex couple.' The court went on to find that plaintiff, as a surviving spouse under the laws of Vermont, is included within the meaning of 'spouse' as it is used under the New York wrongful death recovery statute, and has standing to recover for the wrongful death of Neal Conrad Spicehandler.

What Will New York Do?

The Langan decision is only one court's interpretation of New York law, and is by no means the final word on what New York's courts will do when faced with the question of whether a legitimate foreign union has been formed that can be dissolved within the state. And it must be noted that the Langan case was probably one of the easier ones that could have come before a court deciding the legitimacy of a civil union because there was no opposition to the petitioner's position that he was the rightful spouse of the deceased. Langan and Spicehandler had been together for more than a decade, had each named the other to take property through their wills, and had purchased real estate together. The deceased's immediate family members all attested to their belief and acquiescence in Langan and Spicehandler's civil union. But will the outcome be different when a court is faced with a bitterly contested civil union's dissolution in which one party seeks to preserve his assets for his children's use while the other claims he's entitled to half the assets acquired during the union?

It remains to be seen if New York's courts will follow the few decisions in other states refusing to dissolve civil unions and same-sex marriages entered into in other jurisdictions or will take the more expansive view of marriage adopted by the Langan court. But as is evident from the U.S. Supreme Court's June decision striking down Texas' anti-sodomy law, the national climate toward recognition of the rights of gays is warming. And because New York's population has a higher proportionate number of openly gay citizens than many other states, New York's courts are likely to be given the opportunity to decide sooner rather than later if New York will recognize and dissolve civil unions entered into in other jurisdictions.

Janice G. Inman, Esq., is a member of the New York, Pennsylvania and California Bars, and serves as Editor-in-Chief of this newsletter.

American gay couples have a new place to get married. In a landmark ruling last month in Ontario, Canada, the Court of Appeal held that it was unconstitutional to prohibit homosexuals from entering into same-sex marriages, thus opening the way for the first full-fledged same-sex marriage right anywhere outside of Europe. (The Netherlands has permitted same-sex marriage since December 2000, but only to Dutch parties. Belgium has allowed such marriages since January of this year.) The ruling has sent some gay American couples over the border to get marriage licenses and legalize their unions.

Here in the United States, Vermont became the first and only state to allow same-sex civil unions, under Vt. Stat. Ann. tit. 15 ' 1201, et seq., nearly 3 years ago. The law there extends all rights afforded to heterosexual married couples to gay partners.

But when things do not work out for these couples, what recourse do they have to put an end to their legal relationships?

A Double-Edged Sword

Vermont's grant of civil-union status to all comers, regardless of their state of origin, has turned out to be a double-edged sword. On the one hand, it allows couples to legally declare their commitment to one another and sometimes to gain certain rights on their return to their home states. On the other hand, the law incorporates the same residency requirements for dissolution of civil unions as is found in Vermont's divorce law: The state will not take jurisdiction over the case unless at least one party has resided in the state for 6 months and continues to reside there for the following 6 months, until divorce or dissolution is finalized. Because all 50 states grant full faith and credit to marriages entered into in Vermont, heterosexuals who are married in Vermont can move to other states and obtain divorces wherever they reside. Those who enter into civil unions and then return to live in their home states may find that if they want to dissolve the relationship, one or both of them will have to move to Vermont for a year.

Dissolution of the Civil Union Outside Vermont

To date, no reported application for divorce has been made in New York by same-sex partners married in foreign countries, or by partners registered under Vermont's civil union laws. A handful of courts in other states have tackled the issue, however, and most of them have declared that between gay partners, there can be no such thing as marriage or marriage-like legal status, and therefore no divorce or dissolution will be granted. So, what will the New York courts do when they are eventually faced with the various family law issues that will undoubtedly arise from some of these unions? A look at what other states' courts have done may be instructive.

Hawaii

In one past attempt to legalize same-sex marriage, several plaintiffs brought suit in Hawaii seeking a declaration that refusal to issue marriage licenses to same-sex partners violated the equal protection clause of the Hawaiian Constitution (Haw. Const. art. I, ' 5). The plaintiffs won, but while the case awaited appellate review, the state legislature took action by amending the state constitution. The amendment granted the legislature the power to preserve marriage for partners of opposite sexes only. The electorate ratified the amendment in 1998. On appeal, the Supreme Court of Hawaii held that the marriage amendment to the constitution validated the state's law limiting the granting of licenses to opposite-sex couples. Baehr v. Mike , 92 Haw. 634; 994 P.2d 566 (1999).

Texas

In a case filed in Beaumont, TX, petitioner John Anthony sought dissolution of his Vermont-sanctioned civil union to Russell Smith. Judge Tom Mulvaney initially granted the requested relief March 3, 2003, making Texas temporarily the first state outside Vermont to recognize Vermont's civil unions. However, shortly after the decision was entered, the state's Attorney General, Greg Abbott, petitioned the judge to reconsider, arguing that a divorce could not be granted where no marriage had ever existed. Judge Mulvaney was persuaded by the Attorney General's argument, vacated his ruling and ordered a new trial. Before trial could take place, however, Smith voluntarily withdrew his petition.

Connecticut

An appellate court in Connecticut refused to recognize a Vermont civil union as a marriage, and so denied a petition for divorce filed there by Glen Rosengarten, one of the founders of supermarket chain Food Emporium. Rosengarten v. Downes , 71 Conn. App. 372; 802 A.2d 170, 7/30/02. The court was persuaded to come to its decision by the fact the state legislature had had two bills before it in 2002 ' one authorizing same-sex marriage and the other permitting same-sex civil unions ' but had not acted on them. This, the court found, evidenced a legislative intent not to authorize same-sex partner unions. In addition, no other legislative or common law of the state supported jurisdiction by the Superior Court. The case was up for appeal, but Rosengarten died before the appeal could be heard.

Georgia

In Georgia, in the case of Burns v. Burns , 253 Ga. App. 600; 560 S.E.2d 47, 1/23/02, male/female married couple Susan and Darien Burns obtained a divorce and entered into a consent decree visitation agreement mandating that neither parent would be allowed to have the couple's children for overnight visits if he or she were cohabiting with an adult to whom he or she was not married. Some time later, shortly after the Vermont civil union law went into effect, Susan Burns and her female partner went to Vermont to be legally joined in a civil-union ceremony. When they returned to Georgia, Burns' children visited her overnight in the home she shared with her partner. Ex-husband Darien Burns moved for a finding of contempt, charging violation of the consent decree.

Ms. Burns asserted that she and her partner's civil union was equivalent to a marriage, and therefore she was not in violation of the agreement. Nevertheless, the Georgia Court of Appeals' three-judge panel unanimously concluded that Ms. Burn's ceremony had created only a civil union, not a marriage, and that her consent decree specifically required marriage before the children would be allowed to stay overnight with her and another adult in the home. The judge also found that Georgia's Defense of Marriage Act (Ga. Code Ann. ' 19-3-3.1(a)), which defines a marriage as being between one man and one woman only, precludes unions such as Ms. Burns' from being recognized in that state. In addition, the court noted that the Federal Defense of Marriage Act (1 U.S.C. ” 7; 28 U.S.C. ” 1738C) has declared that a marriage is a union between a man and a woman, and that no state shall be 'required to give effect' to a same-sex union; therefore, Georgia retained the constitutional right to deny full faith and credit to same-sex marriages solemnized in other states.

West Virginia

And finally a West Virginia Family Court judge has issued a divorce to a lesbian couple united in Vermont, but that decree was issued in an unreported case: No court in any state has issued a divorce to a couple united in a Vermont civil union in a possibly precedent-setting case.

The Langan Case

As is obvious from the foregoing cases, one of the primary problems for couples joined under Vermont's statute is recognition of their unions when they return to their home states. Dissolution of the partnerships has precipitated the most courtroom activity, but as in the Georgia case, it can also become an issue in custody and child visitation cases. One case has opened up for speculation the question of whether New York's courts will fall in line with other states' family courts, or will buck the trend and recognize out-of-state civil unions (or foreign same-sex marriages) as institutions requiring provision of rights similar to those conferred by marriage. In that case, Langan v. St. Vincent's Hospital of N.Y, No. 11618/02, Sup. Ct. of New York, 2003 N.Y. Misc. LEXIS 673, 4/18/03, a New York court held that a plaintiff who was joined with his same-sex partner in a Vermont civil ceremony had standing to sue for the wrongful death of his partner due to medical malpractice.

The limited issue presented on the motion and cross-motion in Langan was whether, under principles of full faith and credit or comity, plaintiff John Langan's status as a legal partner of Neal Spicehandler in a civil union solemnized in Vermont entitled him to recognition as a 'spouse' under New York's wrongful death statute. Defendant hospital had moved for dismissal, claiming that plaintiff, as a person unrelated to the deceased, had no standing to sue for his partner's wrongful death or for medical malpractice. The court noted that under New York law as it now stands, if plaintiff were a registered domestic partner, he would be able to succeed to a rent-controlled apartment as a 'family member,' would be able to recover had his partner been lost in the events of 9/11, would be eligible for the derivative employment benefits of a city or state employed partner ' including death benefits ' would be eligible to adopt his partner's biological child and would be entitled to be free from discrimination on the basis of sexual orientation under the civil rights and executive law. Previous to this case, however, he would not have been able to recover as a spouse under the wrongful death statute, based on the holding of Raum v. Restaurant Assoc. , 252 AD2d 369, app dsmd 92 NY2d 946. However, at the time Raum was decided, there was no state-sanctioned union equivalent to marriage anywhere in the United States. The court in Langan found that '[p]assage of the Vermont civil union statute provides a basis to distinguish Raum.'

With respect to marriages entered into in sister states, the Langan court noted that New York adheres to the general rule that 'marriage contracts, valid where made, are valid everywhere, unless contrary to natural laws or statutes.' Shea v. Shea , 294 NY 909. And, unlike 35 other states, New York has not enacted a version of the Federal Defense of Marriage Act. Therefore, the Langan court held that under principles of full faith and credit and comity, and following authority that advances the concept that citizens ought to be able to move from one state to another without concern for the validity or recognition of their marital status, 'New York will recognize a marriage sanctioned and contracted in a sister state, and there appears to be no valid legal basis to distinguish one between a same-sex couple.' The court went on to find that plaintiff, as a surviving spouse under the laws of Vermont, is included within the meaning of 'spouse' as it is used under the New York wrongful death recovery statute, and has standing to recover for the wrongful death of Neal Conrad Spicehandler.

What Will New York Do?

The Langan decision is only one court's interpretation of New York law, and is by no means the final word on what New York's courts will do when faced with the question of whether a legitimate foreign union has been formed that can be dissolved within the state. And it must be noted that the Langan case was probably one of the easier ones that could have come before a court deciding the legitimacy of a civil union because there was no opposition to the petitioner's position that he was the rightful spouse of the deceased. Langan and Spicehandler had been together for more than a decade, had each named the other to take property through their wills, and had purchased real estate together. The deceased's immediate family members all attested to their belief and acquiescence in Langan and Spicehandler's civil union. But will the outcome be different when a court is faced with a bitterly contested civil union's dissolution in which one party seeks to preserve his assets for his children's use while the other claims he's entitled to half the assets acquired during the union?

It remains to be seen if New York's courts will follow the few decisions in other states refusing to dissolve civil unions and same-sex marriages entered into in other jurisdictions or will take the more expansive view of marriage adopted by the Langan court. But as is evident from the U.S. Supreme Court's June decision striking down Texas' anti-sodomy law, the national climate toward recognition of the rights of gays is warming. And because New York's population has a higher proportionate number of openly gay citizens than many other states, New York's courts are likely to be given the opportunity to decide sooner rather than later if New York will recognize and dissolve civil unions entered into in other jurisdictions.

Janice G. Inman, Esq., is a member of the New York, Pennsylvania and California Bars, and serves as Editor-in-Chief of this newsletter.