Same-sex couples are well aware of how marriage bans or unequal marriage laws are affecting them, while most heterosexual couples probably don’t even think about the benefits marriage affords them. ©iStockphoto.com/MariaDubova
November’s election brought more than just a second term for President Obama; it also marked the first time that gay marriage was backed by a popular vote. In fact, three states — Maine, Maryland and Washington — voted at the ballot box to allow same-sex marriage.
Currently, nine states and the District of Columbia allow same-sex marriage, while 31 states have constitutional amendments banning gay marriages, including Michigan. These laws are resulting in legal complications for many couples and the states in which they choose to reside.
“There’s a real disconnect when you go over state borders,” said Richard Roane, partner at Warner Norcross and Judd.
Roane, the first openly gay partner at Warner, has just been asked to co-chair, along with Miller Johnson attorney Connie Thacker, the new lesbian, gay, bisexual and transgender/alternative family committee for the American Academy of Matrimonial Lawyers. The AAML is a national organization with a membership of 1,600 attorneys and chapters in nearly every state.
Roane currently serves as the president of the AAML Michigan chapter and as a delegate to the national board of governors. He has been a divorce attorney for more than 25 years in Grand Rapids and has counseled thousands of clients and their families.
Recognizing that marriage is good for children and for families, the AAML board of governors voted in 2011 to publicly support gay marriage. The new committee was formed to work on education and advocacy to help create or improve laws to address the issues facing alternative families.
The committee met for the first time in Chicago in November to begin planning and developing goals.
“We talked about how we can collaborate within the organization, working with other committees and outside organizations,” Roane said.
He said one of the key issues the committee will focus on is the “portability of marriage licenses.” Due to the patchwork of laws that states have enacted around gay marriage, a litany of complications and litigation is likely to crop up if same-sex partners divorce or one spouse passes away. Roane provided the example of a same-sex couple who marries legally in New York, moves to Michigan and then decides to divorce: Legally, the couple cannot be granted a divorce in Michigan because the state does not recognize the marriage in the first place.
“So a heterosexual couple who gets married in New York can live in Michigan and get divorced no questions asked, as long as they’ve lived in the state for six months. A gay couple that gets married in New York where it’s legal and lives in Michigan … doesn’t have the right to get divorced here.
“Why is that a problem? For people who can’t afford to travel back and forth, for gay couples who have children enrolled in school, it is disruptive to take them out of school, move them to New York to establish their residency there, get them enrolled in school there, while their mommies or daddies are going through a divorce case.
“That’s just one simple and one very realistic reason why, and an example of the unequal treatment and the problem that a gay couple faces if their marriage breaks down.”
Roane said that the most recent case in Michigan involved a same-sex couple who adopted children from Illinois, where it is legal, and then, when their relationship ended, were faced with a complicated custody fight because Michigan does not acknowledge gay parents under the law.
“In Michigan, two same-sex parents can’t be recognized as co-parents, so I believe the outcome of that case was that Michigan recognized and gave full faith and credit to the valid adoption in Illinois and then issued orders about custody, but it’s very complicated.”
Same-sex couples are well aware of how marriage bans or unequal marriage laws are affecting them, while most heterosexual couples probably don’t even think about the benefits marriage affords them, he said.
“There are so many rights that heterosexual couples have automatically that they probably don’t even think about: favorable federal taxation and state tax benefits or rights; inheritance rights is a huge and important one — the right to be a beneficiary statutorily on retirement accounts and on some life insurance accounts and on health insurance benefits, which are critical and expensive.”
Same-sex couples may spend thousands of dollars in legal fees trying to protect their families and children. Dissolving these agreements becomes complicated, expensive and time consuming, especially when children and other states’ laws are involved, and particularly when the breakup is contentious.
“This is an emerging problem, and I believe that, unless something is done to fix this patchwork, there is going to be an explosion of litigation as people end their relationships, as people die, as health insurance coverage needs change. I think there is a lot of trouble in store, in addition to what’s already here.”
The Defense of Marriage Act is likely to come before the Supreme Court in the next year through challenges to the recent decision by the U.S. 9th Circuit Court of Appeals that found Proposition 8, which banned gay marriage in California, was unconstitutional, or the ruling by the 2nd Circuit Court of Appeals in favor of Edith Windsor, an 83-year-old woman who argued that DOMA discriminates against gay and lesbian couples, violating equal protection provisions of the U.S. Constitution.
Even if DOMA is thrown out, it may not immediately affect the states with gay marriage bans written into their constitution. Roane expects more work will need to be done, but believes the first step is having DOMA thrown out.
“States will have to recognize laws of other states and they can’t legislate against recognizing the laws of other states. Some states may need to change their constitutions to get rid of the unlawful portions.”
Roane said that whether people like the idea of gay marriage or not, gay couples are having families, and children are in better situations if their parents are able to marry and divorce under the same laws and status as heterosexual couples.
“It’s unequal treatment and it should be looked at as unconstitutional,” Roane said.