While the Supreme Court debates the constitutionality of the Defense of Marriage Act (DOMA), the law that gives states the right not to recognize same sex marriage or unions entered into in other states, lower courts across the country are facing a growing number of same sex couples seeking to dissolve their unions. In states that do not recognize same sex marriages, such as Pennsylvania, same sex divorce is proving to be challenging, if not impossible.
Not being able to legally separate or divorce can wreak havoc on these couples’ personal finances. It also usually means that one of the parties loses control over assets, such a business or financial account, that he or she help build during the union.
In Pennsylvania, as in most other states that do not recognize same-sex unions, there is simply no clear path for same sex couples to “divorce” or separate. It is a legal grey area that lawyers are trying to navigate. Forget “thinking outside the box.” When DOMA is involved, it’s necessary to throw out the box and build something new.
NOTE: SEE UPDATE BELOW
About DOMA:
The Defense of Marriage Act (DOMA), enacted in 1996, prevents the federal government from recognizing same-sex marriages and allows each state to refuse recognition of same sex marriages performed in other states. The provision of DOMA forbidding the federal government from recognizing same sex marriages has been found unconstitutional in eight federal courts, including two federal appeals courts. Five of these cases are pending review by the Supreme Court. This includes United States v. Windsor – a case much in the news these days.
Our client and her partner lived in Pennsylvania, but traveled to New Jersey to enter into a civil union, the legal equivalent of a marriage for same sex couples. New Jersey permits non-residents to be legally joined there with just a three-day waiting period for a marriage or civil union license. Unfortunately, to divorce in New Jersey, one spouse must have lived in the state for at least one year prior to the divorce. Because neither party wanted to move to New Jersey for a year, the case needed to be resolved in Pennsylvania. During the course of the marriage, the couple bought a house, started a business and had children through in-vitro fertilization. There were debt, asset, support and other issues to be legally addressed. The question was: how?
In an attempt to dissolve the union, our client’s partner filed three civil lawsuits, including two partition actions, one for a house and one for a car, and a lawsuit seeking to have the court declare the civil union ended. Those claims, however, were insufficient to permit our client to assert her full equitable interest in those assets, as well assets separately titled in the partner’s name, including a business and retirement accounts, or to assert a claim for spousal support.
To overcome these problems, Cooley & Handy relied on a Pennsylvania legal decision from 1983 that was aimed at protecting unmarried heterosexual couples. In Knauer v. Knauer, an unmarried woman took her ex-boyfriend to court for support. She won her case based on her claim that the parties had entered into a verbal agreement – an oral contract – that she would receive financial support if they ever ended their relationship. The court in that case held that such an agreement was enforceable as a contract even if the parties were not married.
With that precedent mind, Cooley & Handy asserted several counter-claims to the partner’s civil lawsuits, including a claim for equitable distribution of the assets that the parties acquired during the marriage and a claim for support. We argued that by going to New Jersey and entering into a civil union, the couple was, in effect, entering into an oral partnership contract just as the couple had done in Knauer v. Knauer. We further argued that the terms of the contract were those imposed by New Jersey law, including the right to seek support, alimony and the equitable distribution of assets acquired during the civil union or partnership.
Thus, the theory of the case was that while Pennsylvania courts may not recognize the religious or ceremonial union and apply Pennsylvania divorce law to same-sex unions, Pennsylvania courts should, based on Knauer v. Knauer, at least recognize the contractual terms of the relationship and enforce the terms of the contract under civil law and rules.
This creative strategy gave our client the leverage she needed to successfully negotiate a satisfactory financial settlement of the overall case. Until DOMA is overturned, divorce attorneys need to think creatively and stretch the law to help their clients in a same sex relationship.
UPDATE: DOMA was overturned by the Supreme Court on June 26, 2013
Cooley & Handy are Divorce Lawyers and Personal Injury Attorneys serving individuals and families in Bucks County, Montgomery County and Philadelphia. We help our clients navigate the ever changing and always challenging legal system with knowledge, experience and a healthy dose of creative problem solving. This newsletter shines a light on some of our latest cases and news of note.
“Emily Nichols is 20. She lives in Oregon and attends community college. She doesn’t have a job right now for health reasons. She found out several weeks ago that she is pregnant. She and her boyfriend Andy are taking it one step at a time. One step at a time, however, doesn’t entail marriage, at least right now.” – Oliver Read, Generation Next, on PBS.org. Emily is one of the many millennials now questioning, why marriage?
Though there are no precise dates for when the Gen Y or Millennial demographic group starts and ends, it is generally considered to encompass people born between the early 1980s the early 2000s. As a group, they’ve endured their share of bad press: they’ve been labeled spoiled, narcissistic, and immature. TIME magazine has referred to them as the “Me Me Me Generation.”
Gen Y members have also been accused of “delayed adulthood”– a failure to reach the five traditional milestones that sociologist believe mark the transition to adulthood – completing school, leaving home, becoming financially independent, marrying and having a child. According to Kimberly Palmer, author of the book, “Generation Earn”, “high housing prices, the rising cost of higher education, and the relative affluence of the older generation are among the factors driving the trend.” “The traditional cycle seems to have gone off course, as young people remain untethered to romantic partners or to permanent homes…forestalling the beginning of adult life,” writes Robin Marantz Henig, in “What is it About 20-Somethings,” in the New York Times Magazine.
A survey conducted by the Pew Research Center found that almost 1 in 3 young adults between the ages of 18 and 34 have delayed marriage or parenthood because of the economy. Today, just 20% of adults 18-29 are married, compared with 60% in the 1960s; for Gen X it was 30% and for boomers more than 40%.
Gen Y is delaying or abandoning marriage due to a variety of reasons, including economic, social and sexual factors. Some of it comes from worry about being financially stable enough to make a commitment because of growing up during difficult economic times. Caution to commitment stems from their caution towards life in general. Another one of the reasons cited for Gen Y waiting longer to get married and having children out of wedlock is that they supposedly don’t want to get divorced, having seen many of their parents or parents friends go through difficult divorces.
Dr. Larry Nelson, a Marriage, Family and Human Development professor at Brigham Young University notes that, “In prior generations, you get married and you start a career and you do that immediately. What young people today are seeing is that approach has led to divorces and unhappy career choices. The majority want to get married, they just want to do it right the first time. “
A survey of Gen Ys by Greenburg Quinlan Rosner Research found that 59% of those surveyed said that cohabitation without marriage was a legitimate lifestyle and a majority said it is okay to remain unmarried even if they have children, and only half of them agreed that marriage is “one of the most important institutions in this country.”
They also overwhelmingly believe that their peers are not responsible enough for marriage, and think the number of unhappy marriages and frequency of divorce calls the value of marriage into question. Gen Y men, in particular, have been accused of being especially wary of committed relationships. Forget about marriage, they don’t even want boyfriend/girlfriend commitments.
Members of Gen Y, however, are likely making a huge mistake in discounting the value of marriage. They cite emotional and financial concerns when giving reasons for delaying or abandoning marriage. Marriage actually offers significant emotional, financial, and health benefits over single life. It confers huge benefits on men, in particular. Numerous studies have documented that married men, in general, earn higher pay, get more promotions, have more and better sex, and are healthier then their single counterparts.
The importance of these legal protections, particularly in long-term relationships or relationships that involve children, the pooling of financial resources or the acquisition of property, simply cannot be understated. While it is true that divorce can be expensive and emotionally draining, the alternative is far, far worse. Trying to equitably unwind a long-term relationship without the protection of the marriage laws is often impossible and usually financially devastating to one of the parties.
The reality is that when two people are in a serious relationship (and relationships that involve cohabitation are, by their very nature, serious), they tend to take on different roles in nurturing the partnership. Both parties forego other potential relationships and marriage partners. Often one person sacrifices his or her career for the benefit of the relationship. The couple also might purchase a house together, but only put the deed to it in one person’s name. One person might pay the rent or mortgage and the other person might contribute to their retirement account.
Often, one party will lose his or her claim to financial assets that the parties jointly contributed to or acquired during the relationship. End result: all of the problems of divorce (or worse) without the benefit of marriage. The situation is only exacerbated when children are involved. The choice to have children outside of marriage is more often than not financially devastating for both parents. Our firm has seen had a growing number of custody and child support cases involving parties who were never married. Unless you belong to the “1%”, trying to raise a child as a single parent is incredibly difficult, both financially and logistically. For most of our clients, even with the benefit of child support payments, the numbers just don’t add up, when food, clothing, medical care, transportation and daycare are factored in. The stress of our clients in these situations is palpable.
Our advice: wait, find the right person, get married and then have children. Society is simply not set up to support alternative arrangements.
This article was the basis for a story on CBS/Philly – KYW News Radio. To read that story click here.
A survey conducted by the Center for Work-Life Policy found that Gen Xers (33 to 46 years of age) “should be at the prime of their lives and careers, stepping into crucial leadership roles and starting families.” However, most Gen Xers are following a different path…and that includes the decision NOT to have children. In 1990, 10% of 45-year-old women were childless; in 2009 this figure rose to 20%.
In the most recent survey, 43% of women (and 32% of the men) who responded said they were delaying or even opting out of parenting. An article in the U.K Mail Online stated that almost half of the Gen X women they surveyed were still childless well into their 30s and 40s.
Interestingly, the majority of those surveyed were either married or cohabiting.
Cooley & Handy are Divorce Lawyers and Personal Injury Attorneys serving individuals and families in Bucks County, Montgomery County and Philadelphia. We help our clients navigate the ever changing and always challenging legal system with knowledge, experience and a healthy dose of creative problem solving. This newsletter shines a light on some of our latest cases and news of note.
“A corvette. A home in the Hamptons. A Hermes handbag. Oh, and marriage. Because marriage, too, is fast becoming a luxury good,” writes Nancy Cook at The Atlantic.com.
Growing financial and job insecurity due to rapid technological changes and globalization isn’t just killing the middle class. It’s killing traditional marriage, at least among the working class and the new downwardly mobile.
The financial and emotional cost associated with traditional marriage are just too high when they are worried about their own survival in the new economy. Just a few short decades ago, marriage was a traditional rite of passage. In a largely male dominated society – where the man was the breadwinner of the family – marriage often improved economic stability for both partners and was the mark of middle-class status.
Now, in contrast, marriage is often viewed by many as just an additional source of potential insecurity. “Working-class people with insecure work, few resources, little stability, and no ability to plan for a foreseeable future become concerned with their own survival and often become unable to imagine being able to provide materially and emotionally for others,” says Sarah Corse, an associate professor of sociology in University of Virginia’s College of Arts & Sciences. Workers who face job insecurity implicitly face food and housing insecurity. And, if you are concerned about your next meal or where you are going to sleep, you certainly don’t want the additional responsibility of having to provide those necessities for a spouse or family. As one reader of balloon-juice.com commented, “I’d be married right now if my partner could find a job. But he can’t, so we’re not. It’s as simple as that.”
“Years ago, most men, even those with only a high school degree, could settle down, buy a home, support a family, and lead some semblance of a middle-class life. Such economic security is gone for lower-income, less-educated, or working-class Americans, especially if they lack a college education. It’s tough for any single person, male or female, regardless of educational attainment, to be assured of supporting a family.” Adds Ms. Cook.
Maria Kefalas is a sociologist at St. Joseph’s University and co-author of, Promises I Can Keep: Why Poor Women Put Motherhood Before Marriage. According to Kefalas, for poor women, marriage is a luxury item that they are unable to afford. Marriage is becoming a class privilege. She argues that in blue collar America, and especially low-income black communities, “a good marriage is unrealistic.”
“What interests me is the cultural pull to reenact, over and over, traditional vows and strive for traditional gender roles in a world where living a traditional life is increasingly impossible (and even undesirable).” – Lisa Miller, nymag.com
An alternate paradigm of marriage has emerged to replace or supplement the traditional notion of a breadwinner/homemaker. This is the mutual relationship/self actualization model of marriage. In this model, each spouse is viewed as an equal partner in the marriage with the goal of achieving mutual growth and some sort of marital bliss. This version of marriage, however, is equally unobtainable for middle and lower middle class couples because it is both time and resource intensive. Upper-middle class couples have the resources to invest significant amounts of time and money into their “partnership” and to buy “insurance” against martial conflict, including paid child care, paid housework, therapy, and even “date nights.” But these luxuries have become unaffordable to both middle and lower class families.
Upper middle class couples are marrying later in life, staying married more often, and having their children within their marriage more frequently than their working class counterparts.
The trend of both middle class and lower class couples eschewing marriage is now more apparent to the attorneys at Cooley & Handy. This is especially since true the recession hit in 2008, the economic impact of which continues to this day. More and more of the couples that present to our office are unmarried and frequently living at home, or with the support of their parents. Most times, one or both parties are either unemployed or significantly underemployed. The couple did not previously commit to marriage because they were not economically able to start a life together. It’s a slow moving tragedy.
Lisa Miller, nymag.com, concurs with this overall assessment of marriage: “Families have always splurged on weddings. But what’s changed, say the social scientists, is that marriage itself is now a luxury good. Feminist critics have long derided the institution for encouraging fairy-princess fantasies in little girls, but now more than ever, the contract between man and wife (or man and man or wife and wife) is an aspirational commodity, like an Ivy League education or a country house — something everybody is supposed to want but fewer and fewer are actually able to attain.”
On Theweddingreport.com, they estimated the cost of an “average wedding in Bucks County, PA” as between $26,325 and $43,875. They state the average wedding cost is based on a guest list of between 137 and 157. Each additional guest can increase that total by $215 to $263.
Here’s how that total figure breaks down. And remember, these are just “average” costs:
Just like beginning of a relationship can produce an emotional high, the end of a relationship can be an emotional crash. Especially where the decision to end the relationship was not your own. Relationship withdrawal can involve depression, isolation, feelings of worthlessness, and shaken confidence. People going though it will often think that they will never find love or happiness again. Even the person ending the relationship can have mixed emotions about the decision, including regret and second thoughts. It feels like you didn’t know what you had until it was gone.
Neil Sedaka got it right: “Breaking up is hard to do.” Whether or not you are the one who decided to end a relationship, when you separate from someone you love(d), the experience can be painful and paralyzing. But there is light at the end of the tunnel…and a lot of advice on how to survive the breakup.
Broadly, psychologists emphasize that you can’t rush the healing process following the end of a relationship. Every person, and every relationship, is unique. Each recovery has its own timeline. You need to make sense of the loss and establish a new day-to-day routine that does not include the other person. As Loveadvice.com puts it “you ache for the love you were getting that’s now gone. All these feelings have to work themselves out of your system. It’s a process you must go through, similar to grieving or getting over an addiction, and some researchers say that it can take up to half as long as the relationship lasted.”
There are steps, however, that psychologists recommend you take to help reduce the severity of the healing process.
“Learn to love yourself first,” says Suzanne Lachmann, Psy.D. in Psychology Today. “The first step to moving through your grief is to understand that you’re not alone. Talk to your friends, loved ones, or a trusted professional. Read books and articles to help you find the words you need to describe your experience so that you can feel less alone in it. Having an effective way to communicate about your experience can help you better manage the overwhelming nature of the loss.”
A recent study by David Sbarra, published in Psychological Science, found that higher levels of self-compassion translated to “less divorce-related emotional intrusion into daily life.” Self-compassion is defined as self-kindness and an awareness that you are not alone in your pain and grief. As one study participant says, “it is just something that happens, and I guess it is happening more often than not these days. So…that is what the situation is. And you tell yourself you’re not the only person to experience this.”
You’re at the end of a relationship. Accept that you will have feelings. Don’t try to suppress them or be frustrated that you can’t get over it. You are going to feel bad, maybe longer than you think you should, and that’s OK.
You won’t necessarily feel better because the relationship was bad for you. You may even miss a person who was bad for you. It doesn’t mean that you should get back together with him or her or that the breakup was a mistake. Allen Young, an eHow contributor, offers some practical advice on breaking up: “Make the decision to separate, and stick to it. Waffling will ultimately only cause more hurt on both sides, so make sure you are committed to the breakup before you take the first step.”
Eat healthy, exercise, and get out of the house. Don’t succumb to the temptation to cut yourself off from the world and wallow in your misery while eating ice cream. Barton Goldsmith, Ph.D. writes in Psychology Today: “Do something everyday to help yourself heal. Exercise, read, watch some self-help TV/DVD’s, learn to meditate, and never underestimate the power of positive prayer. Pick things that you know will be fun or beneficial and do them. Don’t wait for the mood to come over you, take one action and then take another.”
You may be tempted to seek revenge on your former spouse or romantic partner or punish him or her with fights over money, children, or property. Those actions are counterproductive and can inflict more serious damage on yourself and children.
If you have children, reassure them that the breakup is not their fault. Let them know that you will continue to provide for them in the future. If you are married, consult with a divorce attorney to learn your rights and know your options. It will give you peace of mind and help protect you moving forward. And Know That The Whole World Is Watching. It used to be, you could tear up photos, shred letters and be done with the reminders of a relationship-gone-bad. But in today’s world, it takes a lot more effort to delete those digital memories you posted on Facebook, YouTube, Twitter and more.
As NBCnews.com says, “Facebook is making breakups sadder.” Correspondent Nidhi Subbaraman of TODAY, recently spoke with Corina Sas, a human-computer interaction researcher from the University of Lancaster. “I think Facebook is particularly problematic, because shared friends and a constant stream of updates makes avoiding an ex and letting go much harder.” Avoiding Facebook may help. But not everyone feels the same way. Some are not ready to delete all digital traces of their ex online. “I follow his Facebook and I still check it,” one responder said. To delete, or not delete, is a very personal decision. Just realize that your personal life is out there for the world to see.
A study conducted by University of Minnesota researcher Bill Doherty, published in Family Court Review, queried 2,500 divorcing parents about possible reconciliation. About one in four individual parents believed their marriage could be saved with hard work. One in ten couples were open to receiving help. Interestingly – males were more interested in reconciliation than females.
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Equitable Distribution