This week, I thought I'd invite a lawyer into my Confessional for some advice and guidance that will be useful for any gay couple considering marriage.
Peter Zupcofska, a Massachusetts licensed family law lawyer with Burns & Levinson LLP in Boston, is the go-to attorney on gay partnerships/marriage and divorce in the USA as proclaimed in July 2007 GQ. Residing in Boston, he and his partner Bob are our part time neighbors in both Fort Lauderdale and Manhattan.
He very graciously answered some questions that all you soon-to-be-marrieds ought to be asking.
Fr. T: Peter, now that gay marriage has become the reality in a number of states, I suspect your practice has begun to include some gay/lesbian divorces. How are they different or similar to straight divorces?
PZ: Tony, thanks for letting me share this important information with your readers five years after same sex marriages began in Massachusetts. While divorces for gays/lesbians or straights are equally painful and at times bitter experiences, gay/lesbian divorces are complicated by several factors:
1. I have counseled not financially well off gay/lesbian clients to get married so that they can get a divorce. How could I? In these instances, without the " divorce benefit " of marriage, the clients involved would have been tossed out with virtually nothing by well heeled, self centered partners who would rather pay their high priced lawyers huge fees than provide fairly for a long abused, loyal spousal equivalent escaping a toxic relationship. So called "palimony" does not at all mirror the kind of obligations imposed by divorce laws. Many gay/lesbian couples have had marriage like relationships for decades, but divorce law protections are not available without an actual marriage. For example, in Massachusetts, if you are not married, trying to establish an ownership interest in a bank account, house or car that is not in your name, or not jointly owned, is a huge, costly uphill battle with usually a minor reward even if successful, related to establishing " sweat equity ". If you are married, it is all considered marital property regardless of ownership or "title." What would be fair, reasonable, honorable or even remotely moral is not often put on the table when not required by law in most cases.
2. To file for divorce you need to be married, and your marriage needs to be recognized by the state in which you are living and seeking a divorce. Most states do not recognize same sex marriages performed in those states that do, and therefore, a same sex married couple cannot get a divorce in those states. And no, you cannot simply file in the state you were married if you do not meet residency requirements!
3. The defense of marriage act ("DOMA") allows federal laws (and individual state's laws) that apply to marriage to be limited to straight marriages, including extensive tax rules that allow transfers of property to go untaxed, provides for payment of alimony to be income to the person receiving, deductible by the person paying; dividing retirement benefits; and, providing social security benefits. This list goes on and on, but the bottom line is that DOMA can cost divorcing gays many thousands of dollars not incurred by divorcing straight couples.
4. Chief issues in determining a fair split of assets are length of the marriage and what assets were realized, or gained, during the marriage. Many same sex couples have been together for ten, twenty years and amassed significant assets before their marriage took place. Applying the laws strictly in many instances may not result in a fair allocation.
5. Gay/lesbian couples are much more embarrassed about their divorce. Having fought so hard to have marriage rights, getting a divorce now is letting down your community on top of everything else!
Fr. T: Which couples tend to be more acrimonious when they divorce, gays or lesbians?
PZ: Thus far, I would say they are the same but more men are fighting over the P'town house and its contents, while more women are battling over custody of children. In any divorce it is sad to see children put in the middle. EDITORIAL: Please gays and lesbians, lets show the straight world we can deal in a better way with our children's issues and put them first in this process.
Fr. T: My husband and I don't have a premarital agreement, but then again, we're not rich. Did we make a mistake? Which gay couples should consider getting a premarital agreement when they get married? Is it an expensive proposition?
PZ: Premarital agreements for gay/lesbian couples are not just about money. They are critical because they can address some of the issues that adversely affect their same sex marriage, divorce and surviving spousal rights regardless of monetary issues.
For example, an agreement may mandate that a division of assets take place within 30 days of a state not recognizing their marriage, or denying or dismissing a complaint for divorce, and that the division be recognized when a party is able to obtain a divorce.
Also, gays/lesbians need to consider whether it makes sense for traditional divorce laws to apply to their economic situation. In some instances, an equal division is not a fair division. A 60 year old who has $3 million in assets before marrying a 40 year old with minimal assets should not be required to turn over half of his assets to the younger divorcing spouse because of a divorce after 10 years; likewise, the now 50 year old should be fairly treated. A premarital agreement can accomplish that mutual goal.
Likewise, serious tax consequences can be addressed or potentially avoided.
Fr. T: Do you find that designing a premarital agreement leads to arguments between engaged couples?
PZ: For many, negotiations provide greater clarity and understanding of needs and expectations, particularly when the gay couple may want to be married but not maintain a "traditional" marital relationship. For many, marriage will not be centered around raising children and paying for their children's college tuitions.
What is suitable for the unique needs of each relationship requires discussion.
For others, the negotiations have ended the relationship, and it was a good thing!
Fr. T: What 3 things should be at the top of every gay/lesbian couple's list of legal tasks in preparation for marriage?
1. If you plan on adopting children, be mindful that gays/lesbians are precluded from being considered suitable as adoptive parents in many instances.
2. A biological child born during a marriage of same sex spouses is deemed to be a child of both spouses in Massachusetts. But, how would that play out in most of the other states? Not well for the non biological parent, so go through the formal adoption process.
Playing this out further, Matt and Ben married and Matt fathered Ellen, and Ben is dad by marriage. Ben's rich father dies in Florida leaving a will providing $1 million to each surviving grandchild. Florida law applies. Does Ellen get the million? Get the adoption.
3. Do your financial planning carefully. Given the current laws, simply transferring or placing everything in joint names may lead to huge tax payments in the event of dividing assets on divorce, or upon the death of your spouse. The simple transfer of assets itself may be a taxable gift in some cases. This is a most compelling reason for premarital agreements and financial planning.
Fr. T: What developments do you think we will see in the fight for gay marriage rights nationally in the next 12 months? Dare to predict when we will have gay marriage on the federal level?
PZ: GLAD (Gay & Lesbian Advocates & Defenders) in Boston has filed a suit addressing DOMA. This is the critical next step.
Gay New York must take an active role in pushing through legislation, and lobbying is critical. Imagine. Niagara Falls gay weddings! Slowly we turn, step by step...