With all the attention being bestowed on the legalization of same-sex marriage in New York state, there is another queue being formed there as well: the line of those couples wanting to get divorced. It's not quite as romantic, but from a legal and financial perspective the access to a divorce court is perhaps even more meaningful--to the couples in conflict for sure, but to the larger gay and lesbian community as well. Access to fair and equitable divorce proceedings is important, but being released of marital bounds when the relationship is over is vital.
The patchwork quilt of same-sex marital regulation has led to a bevvy of messy legal conundrums, the worst of which is what to do with the partnerships from states that led the way to allowing legal partnerships to be formed. Vermont opened its doors to civil unions a decade ago, and so there is a backlog of civil union partners from other states whose relationships are starting to unravel. Some of those couples live in New York, and the courts there have not known precisely how to handle the challenges. But finally we are hearing a chorus of good news--in tandem with the first same-sex marriages happening this Sunday.
The latest good news, dramatically reducing any confusion or uncertainty on the subject, the Appellate Division of the New York Supreme Court has issued a new ruling in the long-drawn-out divorce of Dickerson v. Thompson (case number 511849). The same appellate division had previously reversed a trial court's refusal to hear Dickerson's request for a dissolution of the couple's Vermont Civil Union. However, in a move that only contributes to some of the negative impression many folks have of the New York courts, the trial court hearing the case on remand simply stated that the rights and duties of the civil union registration were no longer in effect--but refused to officially "dissolve" the civil union.
This time the appellate division left no doubt as to what is the right result. They ruled that the trial court must also dissolve the civil union, officially, as an extension of the court's broad equitable jurisdiction. In other words, the appeals court declared that the trial court didn't have to wait for express authorization by the state legislature to grant the couple the divorce they were seeking. They could do so--and must do so--based upon the broad general powers bestowed on every trial court.
For those who enjoy reading more of the the nastier side of lesbian divorce, the appellate judge made a point of describing the harsh behavior of the defendant spouse. But from a legal perspective those tales weren't really essential, and chances are the ruling would have been the same even without those details. The appeals court made it clear that since the couple could have obtained a dissolution in Vermont, if they lived there, it would be unfair to deny them this remedy as residents of New York State.
Given the latest news from the state legislature in New York, the judges had to take note of the recent extension of the right to marry to same-sex couples in New York. But they observed, rightfully so, that this legislation was not crucial to this decision. This is an important nuance, as one of the lingering uncertainties in marriage-equality states is how they will handle a civil union or domestic partnership (as opposed to a marriage) entered into in another state. This ruling makes it clear that, at least in New York State, the technical nature of the registration won't be an obstacle to obtaining a divorce.
One remaining point to take note of: the court did not rule on whether the claimant would be entitled to any particular financial or property assets as part of the dissolution; instead, they simply ruled that the court had to enter the order of dissolution. Couples that marry or register in one state but live in another one are going to face significant uncertainties with regard to the monetary aspects of their dissolution - which is why it is so important that every such couple have a pre-registration or pre-marital agreement to address these important issues.
So why is this ruling so important? Until all of the family courts in every state recognize the marriages and civil union or domestic partnership registrations of every same-sex couples, there are going to be messy legal problems when a couple isn't living in the state where they married or registered and then they break up. Fortunately the courtroom doors will be open to them in New York-- ironically, just in time for the celebrations of the opening of the marriage doors as well. New York divorce lawyers, get out your business cards!
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