04.17.09

What's Next? Gay Divorce

As Maine's governor signs same-sex marriage into law, there's a new problem creeping up: undoing the vows.

When Cass Ormiston and Margaret Chambers, partners of 11 years, decided to get married in May 2004, it was a joyfully impulsive decision. The Massachusetts Supreme Court had just declared same-sex marriage legal, and Ormiston and Chambers wanted to get hitched before then-Governor Mitt Romney invoked an obscure state law that would ban out-of-state gay couples from marrying there, which he did soon after. They rushed from their home in Providence, Rhode Island, to the county court in Fall River, Massachusetts, just over the state line, and told the clerk they were ready to make a legal, lifelong commitment.

When Cass met the new love of her life, she couldn't marry her because she can’t divorce her former partner. Or, as she puts it, she’s "married forever to a woman I do not love."

The two women were in a hurry, and in love, which is why when a judge granted their request to waive the three-day waiting period for a marriage license, he looked each of them in the eye and asked in earnest, "Do you know what you're doing?" Of course they did, Ormiston, now 62, says they told the judge. "Imagine me at 58," she says, "never imagining that I would enjoy the right to marry the woman I loved, being able to do it. It was elating."

But it turned out the couple did not entirely know what they were doing. They found that out two years later when, for reasons Ormiston declines to discuss, they split and moved into separate homes. Then, says Ormiston, Chambers served her with divorce papers. (Chambers could not be reached for comment.) But when a judge in Rhode Island's Family Court asked the state's Supreme Court if he could grant a gay divorce when the state didn't even recognize gay marriage, the Supreme Court responded that no, he could not. Ormiston’s marriage would have to stand.

Which meant that when Ormiston, a former property developer, met the new love of her life—ironically, a gay-marriage activist named Susan McNeil—she couldn't marry her, in Massachusetts or anywhere else, because technically she’s still married to Chambers. Or, as she puts it, "married forever to a woman I do not love."

Ormiston’s impasse is the less-heartwarming flip side of the gay-marriage movement, which in recent weeks has bounded forward. This month, Vermont and Iowa joined Massachusetts and Connecticut in allowing same-sex marriage. New York Governor David Paterson introduced a gay-marriage bill yesterday that he promised to make a personal crusade. And today, Steve Schmidt, who effectively ran John McCain’s presidential campaign last year, is expected to tell a gathering of the Log Cabin Republicans that the party needs to get behind same-sex marriage. But as with marriage generally, same-sex marriages sometimes go bust. Unlike marriage generally, however, the process of ending a same-sex marriage can be a Kafkaesque experience.

Part of the reason is because there still isn’t much precedent. A recent UCLA study of same-sex couples in states that offer civil unions or legal domestic partnerships showed that these couples broke their legal bonds at about the same rate as straight couples: 2 percent per year. But because it’s only been a few years that gays have had legal unions at all, this amounts to relatively few dissolutions. Also, because most gay couples who've married thus far had already been together for many years, the gay divorce rate is still low, says Evan Wolfson, founder of the national gay-nups lobby Freedom to Marry. "I expect that, over time, gay people will probably have the same rate of [marriage] failure as non-gay people," says Wolfson. "And that's part of the point. People should be treated equally."

But untying the knot can be tricky for people like Ormiston, who no longer lives in the state where she tied it. Because states that offer gay marriage are few and far between, many gay couples have never lived in the state where they got married. Only a few states recognize, and hence will undo, a gay marriage performed in another state. So if you married in Massachusetts but live in Rhode Island, to get divorced, you’d need to actually move to Massachusetts and declare residency.

"Heterosexual people don't need to worry about this, because as they move from state to state, their marriage is recognized and they can get it dissolved anywhere," says Beth Allen, a lawyer specializing in gay partnerships in Oregon, which last year passed a law that, like California's, allows separated couples who've left the state to come back and dissolve their partnerships there.

Money is another issue. Even though the federal government doesn’t recognize gay marriages, it’s more than happy to accept a chunk of the cash that a same-sex couple’s breakup might produce. Fred Hertz, a lawyer in Oakland, California, and author of Making it Legal: A Guide to Same-Sex Marriage, Domestic Partnerships and Civil Unions, says dissolved gay unions don’t get any shelter from federal taxes on transferred assets. "If I've saved $50,000 and the [state divorce court] determines that half of that is my partner's, I can't transfer that tax-free the way my heterosexual friend could," says Hertz.

In fact, he says, there are plenty of instances in which same-sex couples are better off not marrying. If one partner is in the military, the marriage can create problems under the military's “Don’t Ask, Don’t Tell” policy. A same-sex spouse who’s an immigrant on a temporary visa can get in trouble for getting married, because it suggests an intention to stay here permanently. And if you marry up, "Your rich partner might disqualify you for benefits” like Medicare or financial aid for your college-bound child, says Hertz.

But perhaps the most unique indignity of gay divorce has nothing to do with legal issues at all. Gay couples who marry aren’t just a pair of blushing brides or grooms. They’re poster-couples for a political movement, held up as proof that gay relationships are as non-threatening as a golden retriever and a white picket fence. Which forces people who dissolve such unions to endure a doubly difficult sense of failure—failure as a couple, but also as role models for a cause célèbre. In 2004, Sherry Corbin, 46, of South Hero, Vermont, found this out when she dissolved the civil union she entered into in 2000, a few months after Vermont became the first state to offer them. The actual relationship had begun in 1992, says Corbin, who runs a manufacturing business. Legally, she says, her union was fairly easy to undo. "It was harder getting out of my family plan with Verizon," she laughs.

But ending her civil union complicated her work as an activist for gay marriage in Vermont. She recalls editing a video for Vermont Freedom to Marry, the state's gay-marriage lobbying group. "The last scene got all warm and fuzzy about how the relationship is first and foremost and must endure no matter what. It was really hard to take.”

Bruce Varner, 46, a sales rep who lives in Worcester, Massachusetts, also felt that his union had failed to live up to the gay-marriage standard when his husband of three years left him for a woman. "I said to [him] over and over, 'You know how fucked up this is?' All my friends thought this was a special marriage, put together under the auspices of, This is every bit as important as your straight relationship, please accept it and love it.”

Bruce's ex, Tom, who identifies as bisexual, says he still supports gay marriage. "What we went through provides evidence that same-sex couples have to deal with the same realities that straight marriages do, which is the possibility of divorce, and that was our case."

"Gay people are fighting so hard to end exclusion from marriage that many may feel an extra burden of doing it all perfectly," says Wolfson. But they shouldn't, he says. "One point here is that one of the main protections that comes with marriage is divorce, and gay people are as in need of that as anyone."

Such protection may initially come in the form of state laws that at least allow gay couples who married out-of-state to get a divorce. For now, though, Cass Ormiston is going without one, reluctant to establish residency in Massachusetts just so she can shred her marriage certificate. Last week in Rhode Island, a bill that would allow divorces for out-of-state gay marriages didn’t make it out of the House Judiciary Committee. The governor, Donald Carcieri, a Republican, has spoken out against gay marriages and any legislation that would recognize them, even to undo them.

Ormiston would rather hold out for her dream—that one day Rhode Island will pass a long-languishing bill legalizing gay marriage, which would include a recognition of gay marriages from other states and, in turn, allow her to finally divorce her ex and marry her new partner. "The only right and righteous way to go is full equality," she says.

As for the divorce bill? "It's not good enough. But wanting to be free of a woman I no longer love, I'll take it."

Tim Murphy has contributed to The New York Times, New York, Out, The Advocate and Poz. He lives in New York City.