Divorce Law and the Same-Sex Marriage Debate

As the debate over the legal status of same-sex relationships has percolated over the last several years ' fueled in part by a wave of recent judicial decisions and statutes extending comprehensive rights to lesbian and gay couples in Vermont, Connecticut, California, and Massachusetts, as well as abroad in England, Spain, Canada, South Africa, and elsewhere ' New York courts had several opportunities to consider the issues emanating from these relationships and have now decided that the state constitution does not compel recognition of marriages between members of the same sex.

The state's highest court ruled on July 6 in Hernandez v. Robles, 2006 NY Slip Op 5239, that the New York State Constitution does not compel recognition of marriages between members of the same sex. The court noted that whether such marriages should be recognized is a question to be addressed by the Legislature. (In February 2006, in Samuels v. New York State Dept of Health, 2006 N.Y. Slip Op. 01213, 2006 WL 346465 (3d Dept Feb. 16, 2006), the Third Department joined the First Department in holding that a ban on same-sex marriage does not violate the New York Constitution.) It is now up to the New York State Legislature to determine the future of same-sex marriages and correct the inequality that exists for these couples and their families. This two-part article discusses the many reasons supporting such action.

400-Page Report

The lack of legal recognition for same-sex relationships in New York has resulted in profound inequality ' and serious practical problems ' for lesbian and gay couples, as well as the children of such couples. In a comprehensive nearly 400-page report analyzing the legal issues affecting same-sex couples, a special committee of the New York State Bar Association (NYSBA) in 2005 identified scores of rights that are extended to married opposite-sex couples but denied to same-sex couples. (NYSBA Special Committee to Study Issues Affecting Same-Sex Couples ('Special Committee'), Report and Recommendations of the Special Committee (October 2004), www.nysba.org/Content/ContentGroups/Reports3/SameSex_Marriage_Report/Same-SexIssuesReport2004.pdf (last visited March 3, 2006).) These include the right to make medical decisions for a partner and to visit him or her in the hospital; the right to own property by the entireties (and thus for a surviving spouse to inherit automatically, without the need for testamentary provisions); the right to receive financial support from one's spouse if one is unable to support oneself; and the right to inherit when a partner dies intestate.

The right to a judicial resolution of a couple's financial affairs through divorce and the right of a spouse to petition for custody or visitation of one's children upon divorce are among the most vital rights withheld from members of same-sex couples. The extension of marriage rights to same-sex couples would cure this inequality. It would also be in keeping with the public policies of economic equity and concern for children's welfare that underlie New York's current laws governing relationship dissolution.

The Inequitable Application Of the Equitable Distribution Law

On June 19, 1980, with the enactment of what has come to be called the Equitable Distribution Law (EDL), N.Y. Dom. Rel. Law ' 236, New York fundamentally transformed and modernized its statutes governing the economic rights and obligations of spouses upon divorce. The key concept recognized and adopted in this reform was that of spouses' 'economic partnership.'

Prior to the enactment of the EDL, title controlled the disposition of a couple's assets upon divorce. Gener-ally speaking, any property acquired during the marriage and held in only one spouse's name would be distributed at divorce entirely to that spouse. This scheme generally protected the husbands' financial interests to the detriment of their wives. The EDL eliminated the reliance on title as the basis for distributing spouses' 'marital property.' The governor's memorandum approving the new law stated that '[u]pon its dissolution, property accumulated during the marriage should be distributed in a manner which reflects the individual needs and circumstances of the parties regardless of the name in which such property is held.' (DRL ' 236[B][1][c] defines 'marital property' as 'all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, except as otherwise provided in agreement pursuant to subdivision three of this part. Marital property shall not include separate property as hereinafter defined.')

Under the EDL, the concept of 'economic partnership' replaced title as the basis for disposing of spouses' marital property in divorce. O'Brien v. O'Brien, 66 N.Y.2d 576, 585 (1986) (citing Assembly Memorandum, 1980 N.Y. Leg. Ann., at 130; Governor's Memorandum of Approval, McKin-ney's 1980 Session laws, at 1863). The EDL provides that spouses are entitled to an equitable share of all assets acquired during marriage as recognition for their contributions to the economic partnership, whether as 'spouse, parent, wage earner or homemaker' or by helping advance one another's careers. The courts have broadly defined what constitutes 'marital property' and is thus subject to equitable distribution.

The EDL also dramatically overhauled not only the old asset distribution rules, but also the rules governing the provision of post-divorce financial support to nonmonied spouses. Whereas under the previous scheme a dependent spouse ' typically, the wife ' was entitled to receive 'alimony' for an indefinite period (provided she was not at fault in the divorce action), under the EDL, courts award 'maintenance' only for whatever duration is deemed necessary for the dependent spouse to gain economic independence (irrespective of that spouse's fault). The concept of 'economic partnership' underlay the EDL's spousal support reform, just as it did its asset distribution provisions.

For the purpose of this article, the principal significance of the 1980 divorce law reforms lies less in the particulars of the relevant statutory provisions than in the concepts of economic partnership and economic equity which they codified. Under the EDL, divorcing spouses are treated much like business partners in any other type of partnership dissolution proceedings. Indeed, as one court observed, the EDL recognizes both spouses' right to share in marital assets 'because those assets represent the capital product of what was essentially a partnership entity.'Wood v. Wood, 119 Misc.2d 1076, 1079, 465 N.Y.S.2d 475 (Sup. Ct. Suffolk Co. 1983) (quoted in O'Brien, 66 N.Y.2d at 587, 498 N.Y.S.2d at 748).

There is no principled reason to withhold from members of committed same-sex relationships the partnership rights and duties the EDL automatically confers upon divorcing spouses. These rights are not gender- or sexual orientation-specific. Rather, as the statutory factors cited above reflect, they are grounded in the neutral equitable principle of contribution ' an economic concept equally applicable to all partners, irrespective of their gender, sexual orientation, or other personal characteristics.

Fruits of Partnerships

Just as New York determined in 1980 that it was inequitable to withhold from untitled spouses the economic fruits of their marriages, so too is it inequitable to withhold from untitled and/or financially dependent members of same-sex relationships today the fruits of their economic partnerships. The limited research available suggests that same-sex couples behave similarly to married couples with respect to their finances. For example, many pool assets and acquire property together. Moreover, like spouses, some members of these couples gain economic opportunities during their relationships by obtaining an education or professional license, for example, while their partners sacrifice their own educational opportunities, long-term career goals and/or child-rearing opportunities by working to support the family economically while the other partner is pursuing professional training or accreditation.

Why, given the strong parallels between same- and opposite-sex couples' financial behavior, should the rights to equitable distribution and maintenance be foreclosed to same-sex partners upon the dissolution of their relationships? Why, for example, should a same-sex partner who has contributed to the economic gains experienced by a couple over a long period ' by, for example, assuming primary responsibility for raising the parties' children, by entertaining his/her partner's business colleagues, or by homemaking ' be entitled to none of the assets accumulated by the couple over the course of their relationship, simply because he or she lacks title? Why should the same person not be entitled to some amount of financial support from his/her former partner for whatever period may be necessary to enable him/her to gain (or regain) economic independence after they separate? Why should one partner in a same-sex relationship who has worked to support the family while the other partner is in professional school not receive some portion of the value of the other partner's degree upon the dissolution of their relationship, as would a spouse upon divorce?

While it is possible for separating same-sex partners to engage counsel to prepare contracts which create some of the economic rights and obligations the EDL extends automatically to divorcing spouses, doing so is costly and time-consuming. Moreover, many of the statutory rights and duties created by the EDL, eg, the right to make tax-free property transfers from one spouse to another, cannot be created through private contracts. Finally, free from the default obligations imposed by the EDL, the wealthier partner in same-sex relationships has no incentive apart from altruism to enter into contracts that give an ex-partners the economic rights to which he or she would be entitled in a divorce. In short, private contractual 'work-arounds,' even in the relatively rare cases where they exist, are simply inadequate.

Parents' and Children's Rights upon Relationship Dissolution

Perhaps nowhere is the non-recognition of same-sex relationships more evident ' or of greater consequence ' than in the area of child custody and visitation. In the context of relationship dissolution, perhaps nowhere is the inequality of same-sex couples and the children they raise together more apparent than in the common situation in which one member of a couple has co-parented a child with his or her partner ' the child's biological parent ' but has no biological or legal tie to the child. Whereas a husband is presumed at common law to be the natural father of any child born to his wife during the marriage ' and thus, upon dissolution of the marriage, he has automatic standing to petition for custody of or visitation with the child ' same-sex partners enjoy no presumption of parentage. The New York Court of Appeals held in Alison D. v. Virginia M., 77 NY2d 651 (1991), that, under the Domestic Relations Law, the nonbiological mother of children born to a lesbian couple through artificial insemination is a legal stranger to them, unless she has completed a costly and time-consuming 'second-parent' adoption of these children. (The right of a biological parent's lesbian life partner to adopt the child without the biological mother having to relinquish her parental rights was recognized by the Court of Appeals in Matter of Jacob, 86 NY2d 651 (1995).) Thus, if the biological mother wishes to exclude the nonbiological mother from the children's lives, as occurred in Alison D., the nonbiological mother has no legal recourse. She will abruptly lose her relationship with her 'de facto' child, and the child will lose someone who has functioned in every respect as a parent to her.

Rejecting Equitable Estoppel

Since Alison D., New York courts have increasingly rejected the use of equitable estoppel as an alternative, common-law basis for granting visitation to same-sex partners who are not biological or adoptive parents, with sometimes alarming results. Janis C. v. Christine T. is an apt example of the potentially devastating effect on children of the failure to extend legal recognition to same-sex relationships. In the Family Court, Janis, the nonbiological mother of a lesbian couple's two children, successfully invoked equitable estoppel theory as a basis for obtaining standing to seek visitation with the children after she and Christine separated. J.C. v. C.T., 184 Misc.2d 935 (Fam. Ct. Westchester Co. 2000), rev'd, Janis C. v. Christine T., 294 A.D.2d 496 (2d Dep't 2002), motion for leave to appeal denied, 99 N.Y.2d 504 (2002) (referred to herein as 'Janis C.'). After a hearing, the court found that visitation with Janis was indeed in the children's 'best interests' ' the universal test in custody and visitation determinations.

The evidence demonstrated, among other things, that the women had decided to have and raise children together, and that Christine would be artificially inseminated and stay at home with the children while Janis would work and support the family financially. Christine had executed a will and other documents naming Janis as the children's 'co-parent' and 'adoptive parent.' The children were given both mothers' surnames. Both Janis and Christine had held themselves out as and been recognized by others as the children's 'mothers.' After the couple's separation, Christine sought to exclude Janis from the lives of the children. The Family Court granted visitation to Janis, but the Second Department reversed, concluding that, notwithstanding the extraordinary efforts to which the parties had gone to establish Janis's status as a parent, she had no legal relationship to the children and therefore lacked standing.

Whether or not Janis C. was correctly decided as a matter of law, it is doubtful whether the result there furthered the best interests of the children at issue in the case. Indeed, absent a finding of abuse or neglect, it is hard to imagine how being suddenly deprived of a parental figure could ever serve a child's interests.

Next month, we discuss 'de facto' parents.

Robert Stephan Cohen is a partner at Cohen Lans LLP and a lecturer in law at University of Pennsylvania Law School. Allen A. Drexel is an associate at the firm. John Richards, a third-year student at University of Pennsylvania Law School, assisted in the preparation of this article, which originally appeared in The New York Law Journal, a sister publication of this newsletter.

As the debate over the legal status of same-sex relationships has percolated over the last several years ' fueled in part by a wave of recent judicial decisions and statutes extending comprehensive rights to lesbian and gay couples in Vermont, Connecticut, California, and Massachusetts, as well as abroad in England, Spain, Canada, South Africa, and elsewhere ' New York courts had several opportunities to consider the issues emanating from these relationships and have now decided that the state constitution does not compel recognition of marriages between members of the same sex.

The state's highest court ruled on July 6 in Hernandez v. Robles , 2006 NY Slip Op 5239, that the New York State Constitution does not compel recognition of marriages between members of the same sex. The court noted that whether such marriages should be recognized is a question to be addressed by the Legislature. (In February 2006, in Samuels v. New York State Dept of Health , 2006 N.Y. Slip Op. 01213, 2006 WL 346465 (3d Dept Feb. 16, 2006), the Third Department joined the First Department in holding that a ban on same-sex marriage does not violate the New York Constitution.) It is now up to the New York State Legislature to determine the future of same-sex marriages and correct the inequality that exists for these couples and their families. This two-part article discusses the many reasons supporting such action.

400-Page Report

The lack of legal recognition for same-sex relationships in New York has resulted in profound inequality ' and serious practical problems ' for lesbian and gay couples, as well as the children of such couples. In a comprehensive nearly 400-page report analyzing the legal issues affecting same-sex couples, a special committee of the New York State Bar Association (NYSBA) in 2005 identified scores of rights that are extended to married opposite-sex couples but denied to same-sex couples. (NYSBA Special Committee to Study Issues Affecting Same-Sex Couples ('Special Committee'), Report and Recommendations of the Special Committee (October 2004), www.nysba.org/Content/ContentGroups/Reports3/SameSex_Marriage_Report/Same-SexIssuesReport2004.pdf (last visited March 3, 2006).) These include the right to make medical decisions for a partner and to visit him or her in the hospital; the right to own property by the entireties (and thus for a surviving spouse to inherit automatically, without the need for testamentary provisions); the right to receive financial support from one's spouse if one is unable to support oneself; and the right to inherit when a partner dies intestate.

The right to a judicial resolution of a couple's financial affairs through divorce and the right of a spouse to petition for custody or visitation of one's children upon divorce are among the most vital rights withheld from members of same-sex couples. The extension of marriage rights to same-sex couples would cure this inequality. It would also be in keeping with the public policies of economic equity and concern for children's welfare that underlie New York's current laws governing relationship dissolution.

The Inequitable Application Of the Equitable Distribution Law

On June 19, 1980, with the enactment of what has come to be called the Equitable Distribution Law (EDL), N.Y. Dom. Rel. Law ' 236, New York fundamentally transformed and modernized its statutes governing the economic rights and obligations of spouses upon divorce. The key concept recognized and adopted in this reform was that of spouses' 'economic partnership.'

Prior to the enactment of the EDL, title controlled the disposition of a couple's assets upon divorce. Gener-ally speaking, any property acquired during the marriage and held in only one spouse's name would be distributed at divorce entirely to that spouse. This scheme generally protected the husbands' financial interests to the detriment of their wives. The EDL eliminated the reliance on title as the basis for distributing spouses' 'marital property.' The governor's memorandum approving the new law stated that '[u]pon its dissolution, property accumulated during the marriage should be distributed in a manner which reflects the individual needs and circumstances of the parties regardless of the name in which such property is held.' (DRL ' 236[B][1][c] defines 'marital property' as 'all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, except as otherwise provided in agreement pursuant to subdivision three of this part. Marital property shall not include separate property as hereinafter defined.')

Under the EDL, the concept of 'economic partnership' replaced title as the basis for disposing of spouses' marital property in divorce. O'Brien v. O'Brien , 66 N.Y.2d 576, 585 (1986) (citing Assembly Memorandum, 1980 N.Y. Leg. Ann., at 130; Governor's Memorandum of Approval, McKin-ney's 1980 Session laws, at 1863). The EDL provides that spouses are entitled to an equitable share of all assets acquired during marriage as recognition for their contributions to the economic partnership, whether as 'spouse, parent, wage earner or homemaker' or by helping advance one another's careers. The courts have broadly defined what constitutes 'marital property' and is thus subject to equitable distribution.

The EDL also dramatically overhauled not only the old asset distribution rules, but also the rules governing the provision of post-divorce financial support to nonmonied spouses. Whereas under the previous scheme a dependent spouse ' typically, the wife ' was entitled to receive 'alimony' for an indefinite period (provided she was not at fault in the divorce action), under the EDL, courts award 'maintenance' only for whatever duration is deemed necessary for the dependent spouse to gain economic independence (irrespective of that spouse's fault). The concept of 'economic partnership' underlay the EDL's spousal support reform, just as it did its asset distribution provisions.

For the purpose of this article, the principal significance of the 1980 divorce law reforms lies less in the particulars of the relevant statutory provisions than in the concepts of economic partnership and economic equity which they codified. Under the EDL, divorcing spouses are treated much like business partners in any other type of partnership dissolution proceedings. Indeed, as one court observed, the EDL recognizes both spouses' right to share in marital assets 'because those assets represent the capital product of what was essentially a partnership entity.'Wood v. Wood, 119 Misc.2d 1076, 1079, 465 N.Y.S.2d 475 (Sup. Ct. Suffolk Co. 1983) (quoted in O'Brien, 66 N.Y.2d at 587, 498 N.Y.S.2d at 748).

There is no principled reason to withhold from members of committed same-sex relationships the partnership rights and duties the EDL automatically confers upon divorcing spouses. These rights are not gender- or sexual orientation-specific. Rather, as the statutory factors cited above reflect, they are grounded in the neutral equitable principle of contribution ' an economic concept equally applicable to all partners, irrespective of their gender, sexual orientation, or other personal characteristics.

Fruits of Partnerships

Just as New York determined in 1980 that it was inequitable to withhold from untitled spouses the economic fruits of their marriages, so too is it inequitable to withhold from untitled and/or financially dependent members of same-sex relationships today the fruits of their economic partnerships. The limited research available suggests that same-sex couples behave similarly to married couples with respect to their finances. For example, many pool assets and acquire property together. Moreover, like spouses, some members of these couples gain economic opportunities during their relationships by obtaining an education or professional license, for example, while their partners sacrifice their own educational opportunities, long-term career goals and/or child-rearing opportunities by working to support the family economically while the other partner is pursuing professional training or accreditation.

Why, given the strong parallels between same- and opposite-sex couples' financial behavior, should the rights to equitable distribution and maintenance be foreclosed to same-sex partners upon the dissolution of their relationships? Why, for example, should a same-sex partner who has contributed to the economic gains experienced by a couple over a long period ' by, for example, assuming primary responsibility for raising the parties' children, by entertaining his/her partner's business colleagues, or by homemaking ' be entitled to none of the assets accumulated by the couple over the course of their relationship, simply because he or she lacks title? Why should the same person not be entitled to some amount of financial support from his/her former partner for whatever period may be necessary to enable him/her to gain (or regain) economic independence after they separate? Why should one partner in a same-sex relationship who has worked to support the family while the other partner is in professional school not receive some portion of the value of the other partner's degree upon the dissolution of their relationship, as would a spouse upon divorce?

While it is possible for separating same-sex partners to engage counsel to prepare contracts which create some of the economic rights and obligations the EDL extends automatically to divorcing spouses, doing so is costly and time-consuming. Moreover, many of the statutory rights and duties created by the EDL, eg, the right to make tax-free property transfers from one spouse to another, cannot be created through private contracts. Finally, free from the default obligations imposed by the EDL, the wealthier partner in same-sex relationships has no incentive apart from altruism to enter into contracts that give an ex-partners the economic rights to which he or she would be entitled in a divorce. In short, private contractual 'work-arounds,' even in the relatively rare cases where they exist, are simply inadequate.

Parents' and Children's Rights upon Relationship Dissolution

Perhaps nowhere is the non-recognition of same-sex relationships more evident ' or of greater consequence ' than in the area of child custody and visitation. In the context of relationship dissolution, perhaps nowhere is the inequality of same-sex couples and the children they raise together more apparent than in the common situation in which one member of a couple has co-parented a child with his or her partner ' the child's biological parent ' but has no biological or legal tie to the child. Whereas a husband is presumed at common law to be the natural father of any child born to his wife during the marriage ' and thus, upon dissolution of the marriage, he has automatic standing to petition for custody of or visitation with the child ' same-sex partners enjoy no presumption of parentage. The New York Court of Appeals held in Alison D. v. Virginia M. , 77 NY2d 651 (1991), that, under the Domestic Relations Law, the nonbiological mother of children born to a lesbian couple through artificial insemination is a legal stranger to them, unless she has completed a costly and time-consuming 'second-parent' adoption of these children. (The right of a biological parent's lesbian life partner to adopt the child without the biological mother having to relinquish her parental rights was recognized by the Court of Appeals in Matter of Jacob , 86 NY2d 651 (1995).) Thus, if the biological mother wishes to exclude the nonbiological mother from the children's lives, as occurred in Alison D., the nonbiological mother has no legal recourse. She will abruptly lose her relationship with her 'de facto' child, and the child will lose someone who has functioned in every respect as a parent to her.

Rejecting Equitable Estoppel

Since Alison D., New York courts have increasingly rejected the use of equitable estoppel as an alternative, common-law basis for granting visitation to same-sex partners who are not biological or adoptive parents, with sometimes alarming results. Janis C. v. Christine T. is an apt example of the potentially devastating effect on children of the failure to extend legal recognition to same-sex relationships. In the Family Court, Janis, the nonbiological mother of a lesbian couple's two children, successfully invoked equitable estoppel theory as a basis for obtaining standing to seek visitation with the children after she and Christine separated. J.C. v. C.T. , 184 Misc.2d 935 (Fam. Ct. Westchester Co. 2000), rev'd, Janis C. v. Christine T ., 294 A.D.2d 496 (2d Dep't 2002), motion for leave to appeal denied, 99 N.Y.2d 504 (2002) (referred to herein as ' Janis C .'). After a hearing, the court found that visitation with Janis was indeed in the children's 'best interests' ' the universal test in custody and visitation determinations.

The evidence demonstrated, among other things, that the women had decided to have and raise children together, and that Christine would be artificially inseminated and stay at home with the children while Janis would work and support the family financially. Christine had executed a will and other documents naming Janis as the children's 'co-parent' and 'adoptive parent.' The children were given both mothers' surnames. Both Janis and Christine had held themselves out as and been recognized by others as the children's 'mothers.' After the couple's separation, Christine sought to exclude Janis from the lives of the children. The Family Court granted visitation to Janis, but the Second Department reversed, concluding that, notwithstanding the extraordinary efforts to which the parties had gone to establish Janis's status as a parent, she had no legal relationship to the children and therefore lacked standing.

Whether or not Janis C. was correctly decided as a matter of law, it is doubtful whether the result there furthered the best interests of the children at issue in the case. Indeed, absent a finding of abuse or neglect, it is hard to imagine how being suddenly deprived of a parental figure could ever serve a child's interests.

Next month, we discuss 'de facto' parents.

Robert Stephan Cohen is a partner at Cohen Lans LLP and a lecturer in law at University of Pennsylvania Law School. Allen A. Drexel is an associate at the firm. John Richards, a third-year student at University of Pennsylvania Law School, assisted in the preparation of this article, which originally appeared in The New York Law Journal, a sister publication of this newsletter.