Another Gay Divorce Issue in Maryland

Apr11

I post often about how difficult it is for same-sex couples who marry in a state that recognizes gay marriage but actually reside in a state that does not to obtain a divorce if the marriage later fails. Just ask Jessica Port and Virginia Anne Cowan. The two married in California (which legalized gay marriage and then took away the right by voter referendum) but they reside in Maryland. As you might guess, Maryland doesn’t recognize their marriage and is refusing to grant them a divorce. The couple is now appealing the lower court’s ruling.

Read: A court’s conundrum: When same-sex partners want to split

I cannot emphasize this enough, folks. If you reside in a state that does not recognize same-sex marriage and you obtain a marriage in a state that does, you can’t later obtain a divorce unless one of you becomes an actual resident of a state that recognizes your marriage. And no, having a post office box in that state doesn’t make you a resident for purposes of the court’s jurisdiction.

People from all over the country call me to explain that they want Connecticut to grant them a divorce because Connecticut married them even though they don’t live in this state. I explain over and over that it doesn’t work that way. Read my post “Please Don’t Get Married in Connecticut Unless You Live Here!” It might save you a bit of hassle later on.

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Court Rules that Wyoming Has Jurisdiction Over Same-Sex Divorces

Jun16

Last week, the Wyoming Supreme Court ruled that although that state does not recognize same-sex marriage, its courts do have jurisdiction over divorces filed by same-sex couples married in other jurisdictions. The court was clear that it was only addressing same-sex divorce:

“Nothing in this opinion should be taken as applying to the recognition of same-sex marriages legally solemnized in a foreign jurisdiction in any context other than divorce,” Justice Michael Golden wrote in a footnote.

“The question of recognition of such same-sex marriages for any other reason, being not properly before us, is left for another day.”

Read the court opinion here.

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Arrest Made in Miller-Jenkins Custody Case

Apr25

I posted here and here about the Miller-Jenkins custody case. I received the following press release from GLAD while I was away for the holiday weekend. It is re-printed here for your review in its entirety:

ARREST MADE IN MILLER-JENKINS CUSTODY CASE

Statement of Janet Jenkins

April 21, 2011

As just reported in the Rutland Herald (pay site), there has been an arrest in the custody case involving former civil union partners Janet Jenkins and Lisa Miller, and their daughter, Isabella Miller-Jenkins. Lisa did not comply with a court order to transfer custody of Isabella to Janet on January 1, 2010.

The person arrested is one Timothy David Miller (link to criminal complaint). Little more is known at this point.

Janet Jenkins issued the following statement from her home in Vermont:

“I’m grateful to everyone in law enforcement for working so hard on finding my daughter, as well as to my attorney, Sarah Star. I know very little at this point, but I really hope that this means that Isabella is safe and well. I am looking forward to having my daughter home safe with me very soon.”

Attorney Sarah Star of Middlebury, who has been representing Janet, said, “It is clear that the government has been working hard on this. Janet is very pleased and we are both hopeful that this will be a step in the right direction of bringing Isabella home. At this point we need to let law enforcement do their work, and recognize that there are still steps to go.”

Mr. Miller will make an initial appearance in U.S. District Court for the District of Vermont in Burlington on Monday, April 25, at 9 a.m.

Gay & Lesbian Advocates & Defenders has represented Janet at the appellate level in Vermont; Lambda Legal has represented Janet at the appellate level in Virginia.

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Please Don’t Get Married in Connecticut Unless You Live Here!

Feb1

Every week, without fail, I receive at least a dozen phone calls or e-mails from gay and lesbian couples who do not live in Connecticut, have never lived in Connecticut and never plan to live in Connecticut. In addition to not being residents of the Nutmeg State, each of those couples has one important thing in common: they came to Connecticut to be married.

I should sign up for one of those 900 numbers just to take the hundreds of calls I receive each year asking one important legal question: “If we got married in Connecticut but don’t live there, how do we get divorced?“ At $1.99 per minute, I might actually be able to retire while I still have a fully-functioning mind!

I’m sorry to have to keep saying this folks, but unless you live in a state that recognizes gay marriage, you’re stuck. In order for a court to grant you a divorce (or legal separation or annulment), that court must have jurisdiction over you. For purposes of a divorce, the court won’t have jurisdiction unless you are a resident of the state in which you seek your divorce.

Even though I’ve posted on this issue more than once, I continue to get hundreds of calls and e-mails from gay and lesbian couples who want me to give them a different answer. Sorry, there’s no way around it. If you got married in Connecticut and you want to obtain a divorce in Connecticut, you have to reside in Connecticut. Period.

It’s a sad fact of life that not all marriages last. Heterosexual couples don’t have to worry about what happens when their marriages end because they can obtain a divorce in all 50 states. Gay and lesbian couples do not yet have that luxury.

So here are three words of caution to same-sex couples who don’t live in Connecticut but wish to be married in this state:

Don’t do it!

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A Smorgasbord of Gay and Lesbian News Tidbits

Sep8

I enjoy my late night meanderings on the cyber highway and have collected some news items of interest to the gay and lesbian community. Some are recent and some are older but still worth a read. Please let me know if you come upon something that is newsworthy and I’ll be sure to post it.

Applause is in order here …
Schwarzenegger continues to reject Prop 8 appeal [Associated Press]

Petition to Mandate California Governor File an Appeal in Perry v. Schwarzenegger Decision [Constitutional Law Prof Blog]

Why doesn’t this surprise me?
Study: Gay marriage isn’t a threat in Iowa [Press Citizen]

More applause is in order:
Sandra Day O’Connor to defend embattled Iowa judges The Iowa Independent]

Just in case you’re in the mood to travel …
Gay unions made legal in Australian territory [International Living]

This is both ironic and sad — but honestly not all that surprising:
Wealthy Prop 8 Foe Has Gay Son [Gay City News]

And so it goes …
Dallas judge’s ruling saying gay couple could divorce in Texas rejected on appeal [Dallas News]

Same-Sex Divorce a No Go in Dallas [Wall Street Journal Law Blog]

See my original post on the Texas divorce case: Texas Judge Rules State’s Ban on Gay Marriage Unconstitutional [Connecticut Lesbian and Gay Law]

And just in case you missed this one, read my post on Texas GOP Not So Gay-Friendly (as if that’s a surprise). [Connecticut Lesbian and Gay Law]

The world of gay and lesbian law continues to change daily, it seems. Stay tuned for more twists and turns on this roller coaster ride we call equality.

State Residency Requirements Apply to Same-Sex Couples Seeking Divorces

Jul27

I’ve posted on this topic before and I’ll likely post on it again because it is the issue for which I receive the most calls every week in my law practice. If you are a same-sex couple and you entered into civil union or marriage in the State of Connecticut but you do NOT reside in Connecticut, how do you obtain a divorce?

It’s not news that lesbian and gay couples can marry in some states … but just try to get divorced!

In Connecticut, whether you are a same-sex couple or an opposite-sex couple, our statutes state that:

Sec. 46b-44(c) A decree dissolving a marriage or granting a legal separation may be entered if: (1) One of the parties to the marriage has been a resident of this state for at least the twelve months next preceding the date of the filing of the complaint or next preceding the date of the decree; or (2) one of the parties was domiciled in this state at the time of the marriage and returned to this state with the intention of permanently remaining before the filing of the complaint; or (3) the cause for the dissolution of the marriage arose after either party moved into this state.

No matter who you are, if you want to obtain a divorce in Connecticut, you must reside in this State. Period.

If you are a heterosexual couple, you can obtain a divorce in all 50 states (provided you meet that State’s statutory residency requirements). If you are a lesbian or gay couple, however, you can only obtain a divorce in a state that recognizes same-sex marriage. That’s a serious problem for many gay couples.

Until the blatantly discriminatory federal DOMA and similar discriminatory DOMA legislation in most states can be obliterated, same-sex couples will find obtaining a divorce quite the challenge. It’s unfair, yes. But it happens to be the truth.

In the end, here’s what it comes down to: If you are a same-sex couple wishing to enter into marriage, please be sure to reside in a state that recognizes same-sex marriage in case you later want to obtain a divorce.

Sounds crazy, doesn’t it? Don’t get me started.

Sometimes Marriage Ends in Divorce

Mar29

I apologize for the silence last week but I was away on vacation. Today was day one of being back to the work routine. Wow, Mondays can be brutal.

As an attorney, I spend a lot of my time working with lesbian and gay couples. While I was away, I thought a lot about gay marriage.

Before marriage for gay and lesbian couples was legalized in 5 states and the District of Columbia, a handful of states legalized civil unions. In the years that have followed, some of those civil unions and marriages have, unfortunately, failed.

In a recent edition of Edge, contributor Padraic Maroney wrote a piece titled, “With Gay Marriage comes… Gay Divorce.”.

In my law practice, I have heard from a number of lesbians and gays who wish to dissolve their marriages or civil unions. I advise every one of those people that in order to become divorced in Connecticut, they must file an action for dissolution in Superior Court and obtain a judgment of dissolution.

Couples may choose traditional litigation, collaborative divorce or mediation as a means to reaching the final divorce settlement agreement.

I’ve posted here before on the merits of collaborative divorce and the differences in that process in “Collaborative Divorce: Another Way To Dissolve Same-Sex Marriages and Civil Unions.” I’ve also posted on my other blog, Attorney O’s Midnight Musings” on Why I Prefer the Collaborative Divorce Process Over the Traditional Litigated Divorce.

If you are facing divorce, it is important to understand how the decision will impact your life. Divorce can be an emotionally and financially difficult time. Fully preparing for the change of circumstances can make a world of difference.

I will remind gay and lesbian couples who are legally married or united in civil union — and who do NOT live in Connecticut (or another state that recognizes gay marriage) that you cannot simply file for divorce in any state in this country. In Connecticut, for example, at least one party to the marriage or civil union must have been a resident of this state for one year before the divorce action can be filed. That is known as a residency requirement. A lot of people are under the mistaken impression that if they obtained a marriage or civil union in Connecticut, but have never been residents of this state, Connecticut courts will automatically have jurisdiction over your divorce. That is simply not true.

Either way, if you are seeking divorce, be sure to investigate your options. It pays to be prepared.

Collaborative Divorce: Another Way To Dissolve Same-Sex Marriages and Civil Unions

Jan20

Same-sex couples seeking to dissolve a marriage or civil union have three basic options: litigation (court-based action), mediation and collaborative divorce. In this post, I will discuss the latter. Collaborative divorce is a process whereby the spouses and their collaboratively-trained lawyers work together, often with the assistance of a neutral financial professional and a coach, to reach a fair divorce agreement.

Unlike traditional court-based divorce (litigation), the participants in a collaborative divorce are empowered to make their own decisions rather than to rely on a judge to do so. The divorcing spouses and their collaborative team work together to form an agreement based upon the individual needs and interests of the couple (and their children, if they have any).

The participants sign an agreement stating that they will not litigate the case in court. They agree to share all information required to facilitate the process and don’t hide information from anyone in the process. If one of the participants breaks the agreement and takes the case to court, the collaborative lawyers and other professionals are discharged from the case and will not participate in the litigation.
Collaborative divorce is usually less expensive than traditional divorce for a variety of reasons. First and foremost, because the process takes place outside the courtroom, the spouses do not incur fees for multiple court battles (which often require hours of waiting around in the hallway waiting for your case to be called). When assets need to be properly valued, the participants work with a neutral financial professional (who is also collaboratively trained). By sharing this professional resource, the participants pay a much lower fee and the process is often expedited.

There is an enormous emotional component to every divorce which can often cause one or both of the spouses to feel considerable anxiety. The collaborative approach recognizes this basic human element and factors it in to the process. When needed, a neutral coach works with the couple to help them with the emotional aspects of difficult issues and helps to promote productive communication.
The participants are represented by separate lawyers who are there to advise them about the complicated legal issues. However, unlike traditional divorce, a lawyer is not there to try to convince a judge to give his or her client exactly what that client wants – without regard for the needs and interests of the couple (and their children). The collaborative lawyer’s job is to refocus the participants on their common goals, which include being able to meet future financial needs, to have well-adjusted children, and to be able to move forward with as little disruption and trauma as possible.

Collaborative divorce may not be suitable for all couples. However, a candid discussion with a collaboratively-trained attorney will help you decide if the process is right for you.
For more information, visit Collaborative Divorce Professionals.

Lisa Miller Disappears with Daughter After Ex-Partner Won Custody Battle

Dec31

Lisa Miller and Janet Jenkins entered into civil union in Vermont in 2000. Miller became pregnant with their daughter, Isabella, in 2002. Unfortunately, the couple split in 2003 and a bitter custody battle ensued.

A Vermont judge recently awarded custody of the child to Jenkins. (See “Vermont Judge Orders Transfer of Custody to Non-Bio Mom of Isabella Miller-Jenkins” posted here on November 25, 2009). Miller was ordered to transfer custody of the child to Jenkins on New Years Day. According to ABC News U.S., however, Miller has disappeared with their daughter. Nobody has seen her or Isabella since November 20th.

Read:
Where in The World is Lisa Miller and Her Daughter Isabella?
Mom Missing Days Before Court-Ordered Handover of Daughter, 7, to Former Lesbian Partner

[Source: ABC News U.S.]

5 Years After Same-Sex Marriage Legalized In Massachusetts Divorce Rate Has Dropped

Dec7

I was not at all surprised to read that 5 years after Massachusetts legalized same-sex marriage, the institution of marriage hasn’t fallen apart, as opponents would have had us all believe. Provisional 2008 data from the CDC’s National Vital Statistics Report shows that divorce in that state has actually dropped. In fact, Massachusetts has the lowest divorce rate in the nation.

For those who missed this article, originally published in September, 2009, I offer the following link:

Read: Low Massachusetts divorce rate another defeat for same-sex marriage opponents

It will be interesting to read future data on the impact of same-sex marriage on Connecticut divorce rates. I am rather sure we won’t find that marriage in Connecticut has suddenly unraveled now that same-sex couples are allowed to marry here.

[Source: Examiner.com]

Connecticut Lesbian and Gay Law

Law Offices of Irene C. Olszewski, LLC

Category Archives: Dissolution of Marriage or Civil Union

Another Gay Divorce Issue in Maryland

Court Rules that Wyoming Has Jurisdiction Over Same-Sex Divorces

Arrest Made in Miller-Jenkins Custody Case

Please Don’t Get Married in Connecticut Unless You Live Here!

A Smorgasbord of Gay and Lesbian News Tidbits

State Residency Requirements Apply to Same-Sex Couples Seeking Divorces

Sometimes Marriage Ends in Divorce

Collaborative Divorce: Another Way To Dissolve Same-Sex Marriages and Civil Unions

Lisa Miller Disappears with Daughter After Ex-Partner Won Custody Battle

5 Years After Same-Sex Marriage Legalized In Massachusetts Divorce Rate Has Dropped

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