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Divorce or “Voidance”?

December 21st, 2009 1 comment

Although one Texas judge found that she had jurisdiction over the divorce proceedings involving a gay couple (by reading the state’s constitutional ban on same-sex marriages as trumped by  the U.S. Constitution’s guarantee of equality), that isn’t the result you’re going to get in most courts.

In this latest case from Texas, a same-sex couple legally married in Massachusetts wanted to dissolve their relationship after moving to Austin, TX. But only one party — it seems like the one with fewer assets — wants to divorce. The other resists, and is apparently seeking to void the marriage. As the Attorney General has opined (correctly), Texas law plainly makes that the right course of action.

The difference could be huge, and provides yet another reason for legal recognition of same-sex unions. In a divorce, courts equitably divide all marital property (to simplify, property acquired during marriage by either spouse). Since Texas is a community property state, the ideal would be equal distribution unless there were some compelling reason to do otherwise.

In a “void” relationship, several Texas decisions strongly suggest that the less-well-off party might get…nothing. In one case, a surviving partner wasn’t able to convince the court to favor him over the deceased’s stepson under the “marriage-like relationship” doctrine. because of Texas’s strongly expressed position against same-sex marriages. While the court didn’t expressly rule out the possibility that other equitable doctrines might be invoked, the party petitioning for division of assets has an uphill, perhaps impossible, climb.

Things would be have slightly better, perhaps, if the couple had executed a pre-nup; Texas law will recognize these agreements even as to “void” marriages if doing so is needed to prevent injustice.

I suppose injustice is no problem absent such an agreement. But the pre-nup typically protects the party with greater assets anyway, so the combination of laws in Texas seems crafted to ensure that the non-wage earning spouse in a same-sex couple will be left out of a property division that she might reasonably have relied on. This, of course, is a disincentive for same-sex couples to become as fully invested in each other’s lives as a legally married couple. But isn’t that the idea?

And, once again, I can’t help criticizing the woman seeking to void the marriage. Or to be more precise (since I don’t know anything about the particulars of the relationship here): When will same-sex couples who split up learn to stop using the law to undermine the struggle for equality?

Dallas Judge Declares Texas’s Ban on Same-Sex Marriages Violates the Federal Constitution

October 2nd, 2009 2 comments

Courts sometimes find themselves in a bind: Stray too far from public opinion (even if constitutional principles seem to compel doing so), and they risk vilification and loss of the public’s confidence on which they, to an extent, depend for legitimacy. But ignore the reality of  the litigants before  them, and they run the risk of irrelevance.

The breaking news that a Dallas judge has just recognized the right of a same-sex couple to divorce by finding that the state’s ban on same-sex marriages violates the U.S. Constitution’s guarantee of equal protection highlights the tension between the court’s reliance on public good will and the need to solve problems. As I wrote recently, couples at the end of a marriage must divorce in order to effect a clean separation and to avoid issues — like bigamy — that can surface when they find another partner. Yet in the case I posted on, and Indiana judge denied the divorce (because the court can’t dissolve a marriage that doesn’t exist) while expressing frustration at the result the court felt compelled to reach.

Texas District Judge Tena Callahan wanted to give the couple what it needed, so she did. But at what cost? Since Texas has a state constitutional ban on gay marriages, the only way to get jurisdiction over the case is to vault over the state’s ban and declare the law invalid under the federal constitution. So that’s what Judge Callahan did, invoking the U.S. Constitution’s guarantee of equal protection under the laws to get there.

This decision reminded me of a Florida court’s ruling that the state’s ban on gay couple’s adopting children violated the Florida state constitution’s right to equal protection under the law. In both cases, a court saw a problem that needed solving — especially in the adoption case, where allowing the adoption by long-term foster parents was clearly in the children’s best interest. But appellate courts, at a remove from these actual problems, often take a more dispassionate view of the law and the facts.

Judge Callahan has an argument (at least on the merits; I’m trying to find a copy of the decision, if one exists, to analyze the persuasiveness of her opinion),1 but decisions like this risk creating bad precedent — in theory, this case, because grounded in the federal constitution, could go all the way to the Supreme Court. Did Judge Callahan consider this in trying to solve the problem before her? Should she?

  1. If I do, I will post my analysis.

Enabling “Mad Men” — Part I: The Betty Chronicles

August 12th, 2009 No comments

During a recent vacation in Maine, the four adults in the house gathered what was left of ourselves after our kids had finally gone to sleep, and plowed through the entire second season of Mad Men. (We’d done the same with the first season during last year’s vacation.) One week, thirteen episodes on DVD: now that’s the way to watch TV. By the end, we were all struck by the same thing:

The title and the show’s dead-on depiction of the dysfunctionally glamorous advertising world of the early 1960’s notwithstanding, most of the best-developed and consequently most interesting characters are the women: Betty Draper, wife of the show’s tortured protagonist, Don Draper; Joan Holloway, office manager for the ad agency; and Peggy Olson, secretary-turned-copywriter. All reflect the legal and social cages that helds women during that not-so-long ago time, as well as the various strategies women used to pick the locks.

From my perspective, the sometimes-unstated legal rules that enforced the social norms are especially interesting. In this first of three separate posts about these women, I’ll focus on Betty Draper. 

Don Draper is a beautiful, irresistible man with money and power. As was more common then than now, he sleeps around — often, and with different women. From season 1, it’s obvious that Betty knows about it, but her options are few. The neighborhood’s scorn for the one divorced women in their midst (before they know anything of the circumstances), reflects the high social cost borne by divorcees. When Betty finally takes a stand during season 2 — only after being publicly humiliated — Don denies everything. Despite excavating the house for clues, she unearths no proof of his infidelities. At the time, this meant that divorce would not have been a legal option for for her, or at least not one likely to succeed. There was still no such thing as “no fault” divorce, and most states required that adultery had to be proven by “clear and convincing evidence” — the legal term for evidence somewhere between the “more likely than not” standard used in civil cases, and the “beyond a reasonable doubt” standard for criminal cases. Inasmuch as a adultery was then universally a crime (although seldom punished), this standard made sense. But the effect was to make exit from marriage almost impossible. In New York, where the show is of course set, this was especially true — adultery was the only ground for divorce until 1967!

Yet the show and the law actually reflect legal and social progress over an earlier era: For most of the season, Betty won’t allow Don into the home, and he accepts her decision (while not admitting anything until the season’s final episode, and then obliquely). And the law by this time had at least equalized the legal treatment of the spouses — for centuries, women could get their exit visas only by showing that their husbands had engaged in a “course” of marital infidelity, while men had but to prove a single instance. Even by the early 1960’s, though, I’d guess that someone has studied and shown that the almost exclusively male judges were more sympathetic to husbands than wives.

Betty’s options were further limited by her discovery that she’d become pregnant before kicking Don out of the house. Because of her wealth and station, it seemed that she did have the option of abortion (a friend tells her of “a doctor in Albany.”) What Mad Men doesn’t say is that abortion remained illegal (except in rare circumstances) in New York until 1970 (three years before Roe v. Wade).

The writers, wisely, left unclear whether she’d actually have gone through with the procedure;  before she takes any action, Don returns, hat in hand. In the season’s final scene, the two of them are sitting at a quiet kitchen table as she tells him of her pregnancy. It’s clear that her condition, and her limited options, contributed to her complex decision to take him back.

Like any well-written and thoughtful show, Mad Men isn’t preachy, or comfortably clear. Would a fuller range of legally available options have been better for everyone, including the couple’ s other two kids? Perhaps, but maybe not. It’s impossible to say, of course: We only see one course of possibilities played out. I usually — and here — come out on the side of choice, autonomy and dignity over enforced status.

But let’s not pretend that progress is an unmitigated good in every case. Law makes its decisions in bulk.