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Isobel White

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Legal Same-Sex Divorce

Posted: 02/17/2012 5:42 pm

Last week's Ninth Circuit Court of Appeals ruling on Prop. 8 brought joy and jubilation, and for at least one Californian in a same-sex marriage, a profound sense of disconnect.

I am one of the over 36,000 individuals who legally married their same-sex partner between June and November 2008 -- part of a bubble in history that occurred before Prop. 8 came slamming down. A May 2009 ruling let our marriages stand, while also letting Prop. 8 stand.

So why the sense of disconnect? Because I am getting a divorce.

You didn't see too many of my type in the news last week. Smiling, kissing couples, sure. But two women who no longer want to be married to each other, trying valiantly to nevertheless raise a child together? Not so photogenic.

The thing is, in some ways last week's ruling was as much for relationships like ours as for happily-wanting-to-be-married same-sex couples, because by virtue of laws that recognized my relationship and my family, this process of coming apart has been much less painful than it could have been.

Take our parenting relationship. Because California allows for second-parent adoption, my daughter has two legal moms, with exactly the same rights and responsibilities toward her. We are both her moms, and it will stay that way, forever. Not so for every family in which there are two moms or two dads. In states without second-parent adoption laws, or in relationships where the adoption was not completed, the "legal" parent can use the law to deny the other parent rights.

It's an ugly use of a heterosexist system. And while I firmly and ardently believe that my ex and I would never have used our daughter as a pawn, I personally know parents for whom second-parent adoption has been the difference between retaining legal rights as a parent, or not.

(I do need to note that in California, second-parent adoption for same-sex couples became law a few years before I was married -- but the point is, this law exists because of hard-fought efforts to make sure LGBT families have the same legal protections as other families. And it's not law everywhere.)

And then there's my health insurance. As an independent contractor, I don't have health insurance provided by an employer. Because I was legally married, I was able to stay on my ex's health insurance after we moved into two households, whereas if we had been simply registered domestic partners, I would have lost that right. No longer domestic? No longer covered. But not so for marriage. Marriage law recognizes the importance of protecting families as they shift and reformulate, and even as they fall apart. And on a personal level, this steady health insurance has been a benefit for me, for my child, and for my ex, who would rather see her daughter's other mom stay healthy.

So here I am, giving up a right granted to only a handful of the same-sex couples in California. A limited-time offer that I am sending back. A friend joked that because the court allowed 18,000 same-sex couples to stay married, it should be a like a New York City taxi medallion: once one couple steps down, another should be able to step up to take their place.

But of course, this is not really how it should work. Legal same-sex marriage shouldn't be a rare commodity. It should be a right for everyone.

After last week's ruling, I was moved by the Facebook comment of one woman who posted that she was married in 2008 and is now a widow. I'm sure life didn't turn out the way she had hoped. It didn't turn out the way I had hoped, either. Big sigh. But that, I'm learning, is life.

We all need provisions along the way to make the inevitable bumps and disappointments less bruising. Marriage worked in my family, and I want all families to have the same right. That's why last week I was cheering, too.