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| Evan Wolfson, executive director of Freedom to Marry, said gay
couples need to take seriously any commitment they make, be it marriage or a civil
union. It may be more difficult for a gay couple to get out of that legal agreement
than it is for straight couples.
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HOME > NEWS > NATIONAL NEWS
By: NOELLE JACOB COMMENTS
 
NEW YORK — In August 2003, a lesbian couple
in Sioux City, Iowa, filed papers with an Iowa district court to dissolve their
Vermont civil union. Although Iowa does not recognize civil unions, the judge
in the case granted the women’s request to declare their union terminated.
That would have been the end of the affair had a group of state legislators
and conservative Christian activists not sued the judge and the two women, claiming
that the judge overstepped his authority by granting the couple’s request.
The judge insisted he was simply resolving a routine legal matter, but the
conservative legislators pressed on. In May 2004, Lambda Legal asked the Iowa
State Supreme Court to throw out the anti-gay lawsuit, but not before the debate
on same-sex divorce had crossed state lines.
“Being denied divorce protections is one of the problems of not having
equal marriage rights,” said Evan Wolfson, executive director of Freedom
to Marry, an organization working to win marriage equality for gay couples nationwide.
“It’s one of the most important reasons to have marriage equality.”
The federal Defense of Marriage Act defines marriage as between one man and
one woman, and allows state governments to decide whether they will recognize
same-sex marriages performed in other states; currently, nearly all do not as
a matter of record, though refusals have not been tested in court.
But DOMA “is silent on divorce,” according to Heather Sawyer, senior
counsel for Lambda Legal.
Marriage and divorce laws vary from state to state, forcing same-sex couples
who seek to dissolve their partnerships into uncharted legal territory.
“Some same-sex couples have not carefully thought out the consequences”
of getting married, Wolfson said. “Now that we have that freedom [in Massachusetts],
it’s important to make an informed choice. As gay people come closer to
equality, it’s our responsibility to take it seriously.”
Vermont civil unions are only valid in that state, and offer some of the rights
of civil marriage. While it is easy for a resident or out-of-state couple to
obtain a civil union — all they have to do is get a license from the town
clerk — it’s relatively difficult to dissolve that union in Vermont.
“The issue at hand is what people can do if they live in a state other
than Vermont, go to Vermont to obtain a civil union, and then decide to dissolve
the civil union in their home state,” said Heather Sawyer, a lawyer with
Lambda Legal. “What happens then?”
Vermont only grants divorces to state residents and requires at least one party
of the divorcing couple to reside in the state for one year before the divorce
is granted, according to Gary Buseck, legal director of New England-based Gay
& Lesbian Advocates & Defenders, the group that brought the lawsuit
that eventually led to marriage in Massachusetts.
For the thousands of out-of-state couples who travel to Vermont specifically
for a civil union, that residency requirement can be difficult to meet.
Out-of-state couples that file for dissolution in their home state may face
legal challenges to first prove the validity of their union prior to dissolving
it.
“It’s a state-by-state basis,” Buseck said. “There
will be potentially different results in different places.”
The Iowa court battle is a case in point. Both women desired a legal document,
called a Declaratory Relief, which would state that both women no longer had
any obligations toward the other. However, the group of conservative legislators
claimed that in issuing a Declaratory Relief to a lesbian couple, the court
was effectively recognizing a civil union, which is against Iowa state law.
Sawyer counters, “Iowa law does not require a judge to validate the union
in order to issue a Declaratory Relief.” There is no deadline set for
a decision on the case. Lambda Legal filed an amicus brief with the Iowa Supreme
Court.
A victory in the Iowa case — which would mean the ex-couple can receive
the Declaratory Relief and get on with their lives — could set a precedent
for cases in other states.
“It certainly provides a principle that is fully applicable to other
state courts,” Sawyer said. “This is something we should be doing,
and this case is good guidance for couples coming before ...
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