Although I’d been practicing family law for twenty-three years, I first represented a party in a same-sex divorce in October of 2009.
Difficult though it may now seem to believe, gay marriage was not legal in Massachusetts until the 2003 landmark decision of Goodridge v. Department of Public Health, in which the court concluded that “barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violated the Massachusetts Constitution in that such a marriage ban did not meet the rational basis test for either due process or equal protection….” There was an immediate trend of gay marriages in Massachusetts, but it was a while before gay divorce became as commonplace as straight divorce.
So, in October of 2009, although my client and his husband had been living together for more than twenty years, they had not married until 2004. Therefore, officially they’d only been married for five years.
It was important for me to contextualize my client’s long-term relationship for the Court. If the Court didn’t understand the history of this couple, his marriage would likely have been seen as “short-term,” a factor that would have significantly reduced the length of the spousal support to which he was entitled. And there were the tax consequences to consider: at the time of their divorce in 2009, federal law did not allow even married gay couples to file “married/joint,” another difference that had to be accounted for and the financial consequences understood and considered in the allocation of assets and income.
During the intervening fourteen years since that case, the LGBTQ+ community has made many legal and social gains. Today’s youth seem more comfortable expressing sexual fluidity than I recall my generation ever being. As Courts are often not seen as social change leaders, but because they are compelled to analyze the law in the context of the facts before them, they are following the lead of youth in this way too.
Pride Month seems like a fitting time to consider the journey navigated. Now, in Massachusetts, a parent’s sexual identity in and of itself no longer is considered a relevant co-parenting factor. But as a society, we know that we still have a distance yet to travel. We hurt when we see in too many places, and with harmful consequences, reactionary politicians challenging that progress, and placing limitations on the LGBTQ+ community’s rights and freedoms.
At Consilium, we focus on restructuring families with a vision for their individual and collective future.
All families. Full stop.