If the Supreme Court strikes down DOMA’s “one man, one woman” definition of marriage this year, some of the biggest complications for divorcing gay couples in some states will vanish. It will no longer be necessary, for instance, for lawyers to develop expensive workarounds that provide for equitable distribution of federal benefits like pensions and Social Security, which are taxed in gay divorces but not in straight ones. Simple changes in state laws will sooner or later allow gay couples to divorce wherever they please, without incurring the cost of establishing residency elsewhere or of fighting to apply “long arm” jurisdiction to a spouse back home who refuses to cooperate. And divorce plaintiffs from nonrecognition states will no longer have to reframe their marriages as business partnerships or joint ventures in order to divide marital property or force its sale.
For Kevin and Sam, there were few such complications. They had no children, no need of support, and because both men work for nonprofits, little in the way of tangible wealth to divide. That didn’t stop them from arguing. At first, their negotiations over their only large joint asset—the condo—got tangled in squabbles over who supported whom when, and how much. But Buell urged them to stop trying to persuade each other of the meaning behind their assets and just come up with a price. At that point they quickly agreed on what Kevin should pay to buy Sam out. They also agreed to split the legal fees of about $5,000.
Their relatively inexpensive settlement does not mean that the underlying emotional issues were resolved; divorce nullifies a contract but not a relationship. In fact, their relationship deteriorated even as they reached legal accord. Amicability in the lawyer’s office—while having screaming fights outside it and proxy wars on Facebook—is hard work. “You still have to be in a room being civil with someone who maybe you don’t want to be civil with,” says Sam. “And processing why this person who wanted to be with you forever apparently no longer does.”
Rabbi Margaret Moers Wenig had no clue that she was a lesbian until almost a decade into her first marriage, which was to a man. “The real turning point was seeing Desert Hearts on the big screen,” she says. She left the theater sobbing. Even as she paid a pastoral visit to a patient at Memorial Sloan-Kettering—Wenig served for many years as rabbi at Beth Am, the People’s Temple, in Washington Heights—she could hardly stop crying. “I came home that night and said to my husband: ‘I’m quite certain that I’m a lesbian, and I’m afraid our marriage will not be lifelong.’ ”
Their divorce was amicable. The couple wrote their own separation agreement, and ate lunches together during the process of having it turned into legal language by a mediator. They shared custody of their two young daughters 50-50. More than that, they remained extended family to each other, even as Wenig met and fell in love with Sharon Kleinbaum, another rabbi, whom she wed years later, during the California window in 2008. The five of them—Wenig, her ex-husband, their two children, and Kleinbaum—often went to shul together and sat in the same pew.
Having officiated at gay weddings as early as 1991, and having preached about gay rights for many years before they directly affected her, Wenig, now 56, was embraced by her synagogue through all her life changes. More than embraced, really. For a progressive religious community, having a nontraditional rabbi, and especially one who is married, is a kind of gold star. Wenig and Kleinbaum—who leads Congregation Beit Simchat Torah, considered the largest LGBT congregation in the world—began to seem like lesbian-rabbi royalty. They had done everything just right.
And then, after almost twenty years, they fell apart. Their divorce, which is uncontested but not yet final, has been, like many more ordinary divorces, wrenching and costly. Wenig’s own legal expenses so wildly exceeded her savings that she was forced to liquidate a substantial chunk of her retirement funds. She declines to talk further about the circumstances of the split or the divorce itself except to say, “I am heartbroken that this marriage ended.”
But she freely admits that at several points in the process she felt enormous despair, and once “took measures to end my life.” In response to confessing that “violation of Jewish values,” she was “appropriately benched” from the pulpit for a period of time. “A divorce may adversely affect not only one’s family and friends,” she explains, “but members of the wider community as well.” With some studies suggesting that suicidal thinking is more prevalent among gay and lesbian adults (not just youth) than it is in the general population, and others suggesting that divorce itself increases suicidality, it may be that gay divorce amounts to a double whammy, bringing with it an extra emotional risk.