As described in a recent article on CNN Living (Serious legal hurdles for gay divorce), just because gay and lesbians can get married doesn't mean they can get divorced.

Gay and Lesbian couples who marry in one of the few states that allow gay marriage may not be able to get divorced if they move to another state. Currently only Massachusetts, Iowa, Connecticut, New Hampshire, Vermont, and the District of Columbia issue marriage licenses to same-sex couples.

As the CNN article describes, the Texas Attorney General is appealing a ruling by a Texas Judge allowing a lesbian couple (who had been married in Massachusetts) to get a divorce in Texas. An attorney who represents a gay couple awaiting the Texas decision noted "Ironically, if the attorney general [of Texas] is so against gay marriage, why is he trying to hard to keep these two men together?"

Regardless of the ruling in that case, getting divorced in other states isn't the only hurtle facing gay and lesbian couples who want a divorce. DOMA, the Defense of Marriage Act, denies same-sex spouses access to many federal benefits. In a same-sex divorce case, even in Massachusetts, the couple will not be able to accomplish certain typical divorce resolutions in the same way as an opposite sex couple.

For example, a typical division of an asset in a divorce is to transfer a portion of one party's retirement asset to the other. This can be accomplished without tax consequences via a Qualified Domestic Relations Order, but since the IRS does not recognize same-sex marriage, this same transfer would have significant tax consequences in a same-sex divorce. Another example is the tax treatment of alimony. The payment of alimony by the payor to the recipient is taxable to the recipient and tax deductible to the payor. This allows for a shifting of the tax burden, and also usually for a lower tax burden overall because some of the income is shifted to a lower tax bracket. Again because the IRS does not recognize same-sex marriages, same-sex couples who have an alimony order will not receive this tax benefit.

For a further description of how DOMA affects same-sex marriages and the current cases challenging it ( ) check out this article written by our Law Clerk, Jonathan R. Eaton: Defense of Marriage Act: Ability of the Federal Government to Deny Access to Benefits to Spouses in Same-Sex Marriages.

Via AL there is an interesting post at PrawfsBlawg on the new suit by Ted Olsen and David Boies that challenges Prop 8 on Constitutional grounds.

I just read the complaint and think it's a total crapshoot, as the issues are framed as purely ones of Due Process and Equal Protection under the United States Constitution.

Professor Araiza questions the timing and motive of the suit, and notes that legal activists in the trenches are not too pleased that two huge Supreme Court bigshots have jumped into the fray:

I have got to assume that Olson and Boies picked this cause, and only then went looking for clients. Indeed, Olson's comments yesterday support this interpretation, which of course jibes with what we all know about high-profile lawyers like these two -- a lot of their work is all about causes, not individual clients per se.

If that's true then it's hard to avoid the conclusion that Olson and Boies have intervened in the strategy directed by other cause lawyers -- among others, the ones quoted in the Times article as expressing concern and even annoyance about the lawsuit -- who have made gay rights their lives' work. (Hence the title of this post.) At best this strikes me as naive; at worst (again leaving aside the cynical political explanation) it strikes me as an arrogant hijacking of a long-term process worked out by someone else. If Thurgood Marshall were still alive he would probably react to this lawsuit by expressing gratitude for the unpopularity of civil rights litigation in the 1930's: at least he didn't have to fend off others' attempts to bring a school desegregation case to the Court before the time was ripe.

I know a little about Boies and litigated with him (the 2000 recount) and against him (on a few commercial matters). I know many lawyers who now work with him. He's very skilled and impressive but can't just wave a magic wand and line up the votes on such a squirrely legal issue.

Olsen is a whole other can of worms, but I have to assume he's sincere and wants to win this on the merits.

Still, it's not a good sign that they apparently did not coordinate this filing with the folks who are litigating these issues on a daily basis.

As well-regarded as those two advocates are, I just don't see that factor adding a whole lot to this issue. Query if it will even make it to the Supremes, assuming the district court bonks it and the 9th affirms.

Either way there will be lots of pro bono hours racked up at those two firms.

A recent tongue-in-cheek blog post by fellow attorney and blawger, Gabriel Cheong, describes his support for the 2010 California Marriage Protection Act.

The 2010 California Marriage Protection Act, a proposed amendment available at http://rescuemarriage.org/2009/08/22/2010-california-protection-of-marriage-act/, takes Proposition 8 one step further by banning divorce in the state of California.

Support of the 2010 California Marriage Protection Act demonstrates the hypocrisy of attacking gay marriage for being detrimental to the sanctity of marriage when the state allows divorce. Divorce, after all, is the ultimate attack on the sanctity of marriage.

Although this is the classic slippery slope argument, the method can hardly be questioned by those who claim gay marriage will lead to people wanting to marry their pets.

This leads to the question: What does it really mean to protect the sanctity of marriage?

Sanctity is defined by the Merriam Webster Dictionary as 1. the holiness of life and character, or 2. the quality or state of being holy or sacred.

So when you hear pundits, politicians and protesters telling you that the sanctity of marriage is being attacked in the United States, they are right. But it isn't under attack because homosexual couples want to get married. The sanctity of marriage has been under attack since the first time one spouse cheated on their spouse, lied to their spouse, or otherwise disrespected the bonds of marriage.

The fight to keep marriage sacred is not a fight that can be won by the writing of laws, or restricting certain people from enjoying that bond. The fight to keep marriage sacred is an ever vigilant effort by a spouse to support, love and respect their spouse, and it takes two spouses willing to make that effort.

Forcing people to stay in marriages where their spouse is unwilling to make that effort is just as silly as refusing to recognize that homosexuals also have the ability to participate in a sacred bond of support, love and respect with their partners (whether or not the laws support them).

Whether or not everyone approves, it is a fact of life that the "traditional nuclear family" is becoming less the norm. In the practice of family law we are encountering more and more unique family structures; some brought on by the advance of technology (like artificial insemination or surrogate parenthood), some brought on by divorce and re-marriage creating step or second families, and some brought on by the changing laws around gay marriage and adoption.

There are situations in the law in which the Courts have already dealt with the issue of whether a non-biological parent could be a "Parent" as well. For instance, in Massachusetts there is a Grandparent Visitation Statute that provides for visitation for grandparents with their grandchildren if they have been significantly involved in the children's lives. Although this standard is strictly applied by the Courts, a win on a grandparent visitation case is essentially a recognition that a child's grandparent is acting as another parent in some capacity and it would benefit the child to continue that relationship.

Similarly, the Courts in Massachusetts have also recognized "de facto" parents in situations where another person (such as an aunt or uncle or step-parent) has been so involved in a child's upbringing that they have become indispensable in that child's life. The Courts have awarded "de facto" non-biological parents rights of custody or visitation (and sometimes obligations for child support) when it is found that that person has been such a large part of the child's life that it is in that child's best interest to maintain that relationship.

Within this framework, the Court has in the past recognized that third-parties can sometimes be indispensable in the raising of a child. Despite the complications that a third player in the custody/visitation arena can cause, the Courts have recognized in some situations it is more beneficial than cutting that person out of the child's life.

Similarly, this same logic is being applied in expanding how the court views parenting arrangements created by "non-traditional" family structures. As discussed at length in a recent Boston Globe Article, Johnny has two mommies – and four dads, this is becoming more common when lesbian or gay couples involve a third biological parent in the conception of the child.

Also discussed in the article is the opposition by some to the inclusion of any third or non-biological parents in parenting (despite the proven value of quality involvement by step-parents in many families). Of course, much of this opposition is just a thinly veiled opposition to any recognition of gay or lesbian rights as depicted in this news story video posted on the website of colleague Gabriel Cheong. As depicted in this news video and in this article, the law is struggling to catch up with how to categorize these different relationships despite the fact that we already have some precedent in how we deal with "de facto" parents.

In the news video the victim-Mother indicates that she was advised she didn't need to adopt her non-biological child because the law in Vermont recognized her parental rights under her marriage. Since all states don't recognize that marriage, though, it might have been more prudent for her also to adopt the child.

Even for parents in more unusual arrangements that involve three parents, some jurisdictions are now allowing third-parent adoptions.

The takeaway point from this struggle should be that until the law becomes clear in how it treats these relationships documenting your rights and agreements should be clear from the outset. No matter what your family structure is like, if it is "non-traditional" the law might be uncertain in how it treats you or require more "proof" of parental relationship. In order to protect your parental rights you should explore your options when everyone is "getting along".

According to a Boston Globe article, Massachusetts Attorney General Martha Coakley filed a request with the U.S. District Court last Thursday, February 19, 2010, to rule on the constitutionality of the Federal Defense of Marriage Act (DOMA). The reasoning behind the A.G.'s request is that DOMA forces Massachusetts to discriminate against same-sex spouses in order to maintain certain federal funding for programs like Medicaid and Veteran's burials.