Riddle me this, Feeders: If you were never married, how do you get divorced? Well, gay and lesbian couples splitting up in California are finding that out for themselves as they fight over alimony, child support, and community property in family law courts around the state.
Here's why: On January 1, 2005, Assembly Bill 205 took effect, allowing same-sex couples registered with the state as domestic partners to enjoy nearly all the same rights as married straight couples. Domestic partners still wouldn't get federal tax benefits, but overall it wasn't a bad deal, right?
Still, it didn't occur to most same-sex partners at the time that they would enjoy most of the benefits of marriage but all the burdens of divorce.
Since 2000, more than 37,000 cohabitating gay couples (and a few eligible senior couples) have registered as domestic partners in California. Before last year, though, being registered didn't mean much except for maybe making one partner eligible for the other's health insurance. Ending a partnership was as easy as sending a signed and notarized form to the secretary of state.
The new rules now require most domestic partners to file for "dissolution" in court, which can cost thousands in legal fees, even to resolve amicable splits, according to family law attorneys.
Oakland attorney Frederick Hertz, author of Living Together: A Legal Guide for Unmarried Couples, says he's fielded many calls from people upset and surprised that they have to go to court to break up. Same-sex couples are often caught off guard, he says, because there's no culture of divorce in the gay and lesbian world, and it never occurs to them that they might have to, gulp, pay alimony. "The outrage most painfully is felt by the one who has to pay the money, share the community property, pay the alimony," Hertz says. "They have the same kind of outrage that high-earning husbands have been having a hundred years: 'Wait a minute, I support you for twenty years, you leave me, and now I have to keep supporting you?'"
Something like that came up in a nasty divorce filed in Alameda County Superior Court earlier this year involving an Oakland lesbian couple one woman was a real-estate agent, the other an animal-control officer. Things got so contentious that the warring couple, who lived as domestic partners for less than three years, even fought over who had the right to attend a specific twelve-step meeting they both cherished.
Anyway, the real-estate agent, the couple's breadwinner who pulled in $265,000 in commissions last year, flipped when her ex demanded spousal support. In court papers, she claimed her partner had assured her before they registered that she would never come after her for money if they broke up. "So I felt betrayed by her retaining a lawyer and asserting that she was going to take half of everything I have," she wrote in a sworn declaration.
The Realtor fought her former girlfriend with an argument Hertz says has been used in more than one domestic-partner divorce: She accused her of being a domestic-partner bigamist, alleging that she never had terminated a prior domestic partnership. If that were true, their partnership would never have been valid and the breadwinner wouldn't owe any alimony. The case ultimately settled before going to trial.
Statistics on the number of domestic-partner divorces in the state are hard to come by. The Judicial Council of California doesn't track such cases specifically, nor do Alameda and Contra Costa County courts. In San Francisco, Superior Court records show that 28 same-sex couples had filed for divorce up to August 29.
Despite the lack of data, legal experts say one particular provision of the domestic partner law has been particularly controversial in gay divorces, and has already been challenged as unconstitutional in trial courts.
Although AB 205 took effect in 2005, lawmakers applied it to previously registered domestic partners. Hertz says they did so to reduce administrative costs and entitle economically dependent spouses to a bigger share of community property. That, of course, meant the richer partner would get dinged for more cash. One Bay Area divorce lawyer estimates that the retroactivity clause could cost her client $200,000.
Most new laws are applied prospectively, which gives people a chance to learn the new rules and modify their behavior. Applying a law retroactively raises the question of whether some people have been denied their right of due process. Cheryl Sena, a San Francisco lawyer who has handled several domestic-partner divorces, says every new law has kinks that get worked out in the courts, but the retroactivity provision "made a messy situation worse."
The Legislature did give couples the chance to opt out before the law took effect the secretary of state sent out three letters warning registered partners of the change. But divorce lawyers say many couples who got the letters ignored them or didn't understand them, or that they, as so many lovers believe, didn't think they'd ever break up. "Was that notice sufficient?" Sena asks. "Did it get to all the people it was supposed to get to? What if they moved?"
One divorce case in Alameda County Superior Court illustrates that very point. In that case, a lesbian couple living in Piedmont registered in August 2000 and broke up fifteen months later without formally terminating their partnership. One partner, a financial adviser, moved to Oklahoma, while the other, a Mills College student, stayed in the East Bay.
Out of the blue one day in May 2005, the East Bay woman wrote to her ex saying that they'd never terminated their domestic partnership and now would have to do it in court. The Oklahoma woman had never received notice from the secretary of state. In fact, she didn't even remember they'd registered as domestic partners, court papers say.
After receiving the letter from her ex, the Oklahoma woman promptly filed for divorce to comply with the new rules. Once she did, the local woman demanded spousal support and a share of the proceeds from the sale of their million-dollar Piedmont home years earlier. The financial adviser had purchased the house using a generous bonus from her employer as a $460,000 down payment. In the end, the Oklahoma woman settled out of court and picked up her ex-girlfriend's $7,500 legal tab.
Legal experts expect the retroactivity provision will eventually be appealed all the way to the state Supreme Court. In the meantime, trial court judges will have to work out the kinks. "What's really unfortunate is that for the poor folks that happen to break up in the early years, they're the test cases," Hertz says.