On May 15th, after four years of litigation and many decades of discrimination, California became the second
U.S. state to provide full marriage equality for all of its citizens. Starting June 14, same-sex couples all over California will begin tying the matrimonial knot and celebrating a new summer of love.
In a 4-3 decision, the California Supreme Court ruled on the case challenging the state’s marriage statutes, concluding that “in view of the substance and significance of the fundamental right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.”
The Court’s 120-page opinion — click here for a press release boiling it down — analyzes California Family Code Section 308.5 (also known as Prop. 22, or the Knight Initiative) which states that only a marriage between a man and a woman is valid in California; reviews the history and scope of the constitutional right to marry in California; and addresses the equal protection issues raised by the limitation of the word “marriage” to opposite-sex couples.
About time! But despite this great victory for same-sex families, there is no rest for the weary. As the New York Times reports, right-wing groups are working to qualify a ballot measure for the November election that would enshrine marriage discrimination in the California Constitution by way of a constitutional amendment limiting marriage to opposite-sex couples. According to SFGate.com, “The constitutional amendment will qualify for the November ballot if officials determine that at least 694,354 of the [1.1 million signatures gathered] are valid, a decision due by mid-June.” If passed, the measure would nullify last week’s Supreme Court decision and eliminate marriage equality.
The answers to many common questions about what marriage equality means can be found here, at the website of the National Center for Lesbian Rights, the lead counsel on the marriage cases.
By now you’ve probably heard about or seen Tricia Walsh-Smith’s YouTube video, right? If not, here’s the story: Walsh-Smith, a British actress-playwright, has been married for nine years to Philip Smith, president of the largest theatre owner in New York City, the Schubert Theatres. Now, she says, he’s trying to kick her out of their Manhattan apartment and leave her destitute. Under their prenuptial agreement, she’s entitled to half a million dollars and their house in Florida upon divorce, but she’s trying to get that set aside so that she can fight for more of his assets.
Now, she’s brought her case to the Internet with a video that has garnered nearly three million hits since it was posted on April 10. In it, Walsh-Smith explains her predicament, gives a tour of the apartment she’s being asked to vacate, discloses intimate details about her husband to his assistant over the phone, shows photos from her wedding album, makes disparaging comments about her husband’s family, and expresses her distress and bewilderment about the situation. In media mentions from CNN, MSNBC, ABC, and The Los Angeles Times, experts express various opinions about what it all means. Is it the advent of a new weapon in the divorce wars? A plan that will backfire when the judge is appalled by the tactic? A means to gain public sympathy and pressure Mr. Smith into doing what Ms. Walsh-Smith calls “the right thing?” A way for a disempowered wife to regain some control?
Or, as The L.A. Times says, perhaps it is merely “a performance piece by a theatre professional”? I’m inclined to agree with this view, and the whole thing leaves a bad taste. As an advocate of communication, collaboration, and making every effort to take the high road even in the painful and difficult event of a divorce, it’s hard to condone something so clearly designed to humiliate Mr. Smith in the service of revenge and financial gain. The low road seems to have hit a new low.
Recently I posted here on the apparent rise in religious issues in custody disputes. One such case is working its way through the Oregon courts, where the Oregon Supreme Court recently addressed the question of whether a 12-year-old boy can be circumcised at his father’s request over the objections of his mother.
As explained in more detail in the Oregon Divorce Blog, in Boldt and Boldt the Supreme Court remanded the case to the trial court for additional testimony regarding the boy’s preference, which was never considered in the original proceeding. The parents divorced in 1999 and had ongoing disputes about custody, with the father obtaining custody when the son was nine years old. In the meantime, the father converted to Judaism, and stated his intent to have his son circumcised, consistent with the Jewish tradition. The mother asked for — and got — an injunction from the court, prohibiting the father from going forward with the circumcision until she could petition the court for a change in custody and a permanent injunction.
The Supreme Court ultimately held that “the decision to circumcise….falls within a custodial parent’s authority, despite medical or religious objections by the non-custodial parent.” However, the Supreme Court also ruled that the trial court made a mistake by not interviewing the now-12-year-old son about his preferences, and remanded the case to the trial court to evaluate the son’s preference. If he does object, the trial court may transfer custody to the mother.
The most significant part of the ruling is the part that says a custodial parent has control over medical decisions, even over the non-custodial parent’s objections. Even where one parent retains physical custody, it’s far more common for parents to continue to share decision-making than for one parent to have sole power over important decisions like these. Where the fight is over the right to make decisions like this, it certainly raises the stakes in any custody dispute.
Have I mentioned before that mediation and collaboration are great ways to resolve disputes? And that sharing custody cooperatively is optimal for your kids? Sometimes it just can’t happen, but once again, giving it your best effort may pay off in the end, when your kid doesn’t have to go to court and tell a judge whether he wants to be circumcised.
Recent lawsuits and proposed new legislation are challenging traditional ways of calculating and awarding alimony — not just whether it’s awarded, but also how much will be paid and for how long.
The National Law Journal recently reported on proposed laws that would put limits on how long alimony can be paid (in Massachusetts) and give judges specific rules for determining alimony amounts and duration, limiting the judges’ discretion (in Nevada and New York). In Florida, a proposed ballot initiative would require a vote on a constitutional amendment to abolish lifetime alimony awards. The Massachusetts law would cap the duration of alimony at 12 years or half the length of the marriage, whichever is shorter.
One factor in the alimony wars is the increase in the number of women paying alimony to men, which one lawyer called “a huge area of litigation.”
Regardless of who’s paying, alimony has always been — and will no doubt continue to be — a contentious issue in divorce. But for as long as it’s existed, alimony has been an important source of support for women transitioning back into the work force after years of taking care of a home, kids, and their husband’s careers. To the extent that families still function that way, alimony still has its place — especially in long-term marriages with a large disparity in earning power between the partners. At the same time, family structures have changed and apparently, alimony is following suit.
While the nation was focused on the big presidential primaries on March 4, California was also court-watching, as the California Supreme Court heard arguments in lawsuits seeking an end to discriminatory marriage laws in the Golden State.
Lawyers for the parties seeking marriage equality argued that it’s unconstitutional to keep gays and lesbians from marrying a same-sex partner, while the opposing side countered that tradition and public opinion support continuing the current ban on same-sex marriage. The justices were very active in questioning both sides, and it’s hard to tell what they’re thinking, but to me it appeared that some of them, at least, were leaning toward ruling in favor of marriage equality for all California citizens. Their pointed inquiry into how same-sex marriage “undermines” heterosexual marriage certainly exposed the weakness in that particular bit of bigotry, and they also appeared to reject the notion that children always thrive when raised by biological parents of the opposite sex. (In fact, studies show that children of lesbians and gay men do just as well as kids with opposite-sex parents.)
We’ll find out within 90 days what the justices are thinking — that’s the time limit for the court to rule. Lots more about the arguments and the issues in the San Francisco Chronicle, Los Angeles Times, and New York Times. And if you’re up for nearly four hours of court-watching, you can see the argument on the California Channel’s site under the link for “What’s New.” Finally, there’s an interesting summary of the argument session at Leonard Link.
The Advocate recently ran an Associated Press story with a headline saying that former New Jersey Governor Jim McGreevey’s divorce from his wife, Dina McGreevey, has lasted “longer than the couple’s marriage did.” The math leaves a bit to be desired: the McGreeveys were married in October 2000 and split in November 2004, so that’s a shade more than four years, and they’ve been separated for three years and three months.
But the point is well taken — especially when you also read that Mr. McGreevey has already spent over $400,000 on the divorce and may double that before the trial, scheduled for May, is over. Still, there’s a bit of comfort in knowing that the McGreeveys are in the minority. About 95 percent of divorcing couples settle their cases before trial, usually long before they’ve used up the kind of resources that have been squandered in this case.
Of course, the couple’s young daughter is undoubtedly the biggest victim of her parents’ inability to agree — they even fight over whether and when dad can throw her a birthday party. This case is just another object lesson in why it’s better to take the high road, put your kids first, give a little, and get the divorce done.
A West Virginia rock station is celebrating Valentine’s Day by giving away a free divorce. Listeners can enter on the station’s website by giving a bit of personal information and then explaining why they want a divorce. A local attorney has agreed to handle the actual filing, though the station does say that the case can’t be too complicated.
Most people I talked to about this rolled their eyes and shook their heads, but I kind of liked the idea when I first heard about it. I was imagining a fairly amicable divorcing couple who’ve agreed to work things out and just need help with the paperwork of the divorce, and this seemed like a great opportunity for them to get a break on the expense of getting divorced. Then I went to the radio station’s website and saw the picture of a wedding cake with a plastic groom lying next to it in a pool of pretend blood. So much for the friendly divorce fantasy…
The New York Times reports today that custody fights involving the religious upbringing and education of children are on the rise. “‘Part of that is there has been an increase of conflicts between parents across the board…’” combined with the increased willingness of Americans to marry outside their family’s faith and to convert to another religion when they marry, says the chair of the custody committee of the American Bar Association’s family law section.
As noted in the New York Times article and this article on the Nolo website, religion is a difficult issue for a court to decide. Issues of free speech and freedom of religion battle with the rights of both parents to guide their children’s upbringing. As with most custody disputes, religious wars are best settled through mediation or other non-court means — and many courts require mediation before parties are allowed to bring their disputes before a judge.
Getting divorced? Thinking you’ll sell your house and both of you can use the money to start fresh? In these subprime, foreclosure-happy times, think again.
In many divorces, the family home is the biggest asset to be divided. Divorcing couples have a few different options for dealing with the house: (1) the spouses continue to co-own the house; (2) one partner stays in the house and buys out the other partner’s share; or (3) the spouses sell the house and divide the proceeds.
Option (1) is the only one not affected by the current slow housing market nationwide, and it tends to be the least desirable option because it keeps divorcing spouses connected to each other at a time when they’re likely to want to get things done and move on. For couples who want to sell their house or who agree to a buyout, a weak real estate market can hold up a settlement indefinitely, as described by Kathleen Megan in this article.
I would have expected it to be bigger news that Al Gore has come out (no pun intended) in favor of same-sex marriage. In a video statement on his website, current.com, Gore says that “gay men and women ought to have the same rights as heterosexual men and women … to join together in marriage.” The Advocate today provides a written transcript of the video statement.
First the Mayor of San Diego, now the former Vice President, Academy Award-winner, and Nobel Laureate. Who’s next? It most likely won’t be one of the major Democratic presidential candidates, all of whom support marriage-lite in the form of civil unions. But we can always hope that Gore’s eloquent expression of the reality of this issue gets their attention and the attention of the nation.
