Attorneys bracing for the flip side of gay marriage -- divorce

07/08/2013 12:00 AM

08/14/2013 3:37 PM

Jen Ikemoto married and married and married.

She and her former partner married first in San Francisco in 2004, when then-Mayor Gavin Newsom allowed same-sex couples to tie the knot; then in a ceremony that took place before family and friends; and finally in a civil ceremony in October 2008, not long before Proposition 8 banned gay marriage in California.

Two years ago, Ikemoto got divorced.

"When San Francisco allowed us to get a marriage license, it was kind of 'We need to make a stand,' " said Ikemoto, 42, who lives in Sacramento and works for the state.

And the couple kept making a stand, she said, even as the relationship faded.

"Maybe if we'd always been considered equal partners by the state," she said, "I wouldn't have been so eager to rush into it."

Sometimes, marriages just don't work out. The flip side of gay marriage is, of course, gay divorce. With the legal resumption last week of same-sex marriage in California, the state's family law attorneys are gearing up for what happens when some of those marriages fail.

That's already the reality for some same-sex marriage pioneers: Gay and lesbian couples in unsuccessful domestic partnerships and those whose 2008 marriages didn't last have already learned the ropes in family court, where attorneys' fees can easily soar past $20,000.

They've already negotiated child and spousal support, and they've navigated the world of community property, with the equitable division of real estate, bank accounts, pensions and other assets.

Last month, the U.S. Supreme Court effectively overturned California's voter-approved ban on same-sex marriage and handed down a sweeping Defense of Marriage Act ruling that allows legally married gay and lesbian couples across the country to receive federal benefits.

With those landmark actions, legal experts are already warning same-sex couples that hard-fought civil rights can also come with hefty contractual consequences.

"When you grow up in a culture where you're expected to be married, you understand the rules better," said Sacramento family law attorney Eileen Gillis, who handles same-sex divorces. "If you divorce, you know that someone will pay spousal support, and someone will pay child support.

"But with folks who became domestic partners or got married during that brief window in 2008, they came in expecting a simple and easy process to terminate. They were shocked to realize they'd made a deal and signed a contract, and now the Superior Court is involved. You had a bit of a naive population."

When same-sex marriage was briefly legal in California in 2008, about 18,000 couples obtained marriage licenses. What's more, 70,336 domestic partnerships – which provide a network of rights similar to those conferred by marriage – were registered with the state from January 2000 through the end of May 2013, according to the California Secretary of State.

Some of those partnerships involve opposite-sex couples; they can form domestic partnerships when one member of the couple is at least 62.

Like marriages, domestic partnerships are dissolved in Superior Court as mandated by the state's family law code.

Among states that track the dissolution of same-sex marriages and partnerships, the annual divorce rate for gay couples averages 1.1 percent, lower than the 2 percent annual rate among opposite-sex couples, according to a December 2011 study by the Williams Institute, a gender law think tank based at the UCLA School of Law.

The annual rate of dissolution among same-sex domestic partners in California was 1.1 percent, the same as the national average, according to the report.

But divorce isn't foremost in the thoughts of couples as they marry.

"The cynical part of me says that people will jump on the bandwagon now," said Sacramento family law attorney Robert Boucher. "They'll get married not thinking what they're getting into."

With the DOMA decision, legal experts say divorce-related tax consequences will likely be among the federal rights and benefits granted to same-sex couples in the 13 states where they can marry.

For example, the transfer of property and retirement accounts between divorcing same-sex couples previously entailed a gift tax, but perhaps no longer. The DOMA decision also opens the door for the deduction of spousal support payments from federal tax returns.

But same-sex couples still deal with inconsistencies in the law when they split up.

For one thing, none of those federal tax benefits will apply to domestic partners, only married couples, said Sacramento family law attorney Victoria Linder.

And for another, she said, community property begins only with the start of the marriage or domestic partnership, even if a same-sex couple has been together many decades longer.

And what happens if a same-sex couple married in California moves to a state that doesn't recognize gay marriage, then decides to divorce? In an out-of-state divorce, how is child custody determined?

For those couples, family law remains an impossibly complicated maze. No one has clear answers.

"These are growing areas that will keep lawyers busy," Gillis said.

Before domestic partnership moved same-sex divorce into family court, gay couples seeking monetary settlements were required to file so-called "Marvin cases." In 1977, actor Lee Marvin's longtime partner, Michelle Triola, sued him for support in civil court after the couple broke up. She was unsuccessful.

"We used to have a lot of Marvin civil actions," said Gillis. "At least when you have a domestic partnership, you're in family court, and you don't have to prove that contract in civil court through evidence like joint bank accounts."

Child custody cases were equally difficult in the days before domestic partnership: California courts before 2005 routinely ruled that nonbiological parents, as well as parents not specifically named in adoption documents, were not allowed custody.

"It was like the Wild West with some biological parents once they realized they had the reins," Gillis said.

As the Supreme Court ruling on Proposition 8 loomed, Sacramento Pride organizers considered whether to allow same-sex weddings at the June 15 festival. The timing was going to be close, though as it turned out, the ruling wasn't handed down until June 26.

"We decided against it anyway," said Outword publisher Fred Palmer, one of the event's organizers. "My opinion was that marriage is a serious thing, and people need to take it seriously."

Considering all the potential difficulties, Jen Ikemoto was lucky. Her marriage ended, but she and her ex-spouse cooperated with one another during its legal unraveling, she said. They had no children, so custody wasn't an issue; and, she said, they worked out how to divide their finances.

"I don't regret being married," she said. "I'm the person I am because of it.

"When you get down to it, it's marriage. It's not gay marriage and gay divorce. It's marriage and divorce."

Call The Bee's Anita Creamer, (916) 321-1136. Follow her in Twitter @AnitaCreamer.

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