It certainly brings with it an extra moral risk, Wenig believes. In a commentary called “Marriage Equality But Not Divorce Equality,” she points out that many states, including New York, will not count toward the definition of marital property those assets acquired during the years a gay couple were partnered but not legally wed. (She and Kleinbaum were a couple for seventeen years before they could legally marry.) While urging a change in the law to correct this unfairness—“a change that may mean the difference between poverty and survival”—she also argues that it is “good and right” for a divorcing same-sex couple to voluntarily structure the terms of their separation agreement so that it acknowledges the full length of their partnership. “To fail to do so is to dishonor the claims that same-sex couples have been making for decades about our marital-like relationships.” Wenig encapsulates those claims in the story of a Lutheran lesbian couple whose wedding she attended. The minister, she recalls, asked the women to pledge that their marriage would be “publicly accountable”—a striking phrase in a private rite. When further asked “Do you, X, take Y as your beloved partner?” each replied not “I do” but rather “I did, I do, and I will.”
Perhaps it is a sign of increasing equality that gay people are not only breaking such vows but also, like straight people, exploiting every loophole of the legal system to fashion a noose or pillory for their exes. Wenig’s lawyer, Allen Drexel, says that “homophobic anti-marriage-recognition laws” create perverse incentives that almost beg litigants, or their lawyers, “to coerce concessions relating to everything from finances to parenting arrangements.” The most famous example involves two women, Donna M. and Beth R., who lived in New York, together raising two children born to Donna by alternative insemination. Donna and Beth got married in Toronto in 2004 but split up three years later; when Beth then filed for divorce, Donna sought to have the action dismissed on the grounds that they could not be considered legally married in a state that did not allow it. Had the court agreed with this hypocritical argument, which seemed to mock the fact of their Canadian marriage, Beth would have been prevented from seeking joint custody of the children, whom she had never legally adopted. But in a landmark decision in 2008, Donna’s motion was denied, and the divorce, including joint custody, was granted in 2009.
Custody was not a legal issue for Wenig; her daughters, raised with Kleinbaum from early childhood, are no longer minors. But she says the girls are nevertheless “caught in a painful unofficial custody battle” that makes her worry about the effect of gay divorce on family and the larger community. Her parents, who had initially offered only antipathy and resistance to her declaration that she was a lesbian—“This will hasten my death,” her mother said—eventually came around. “The joy we exuded as a couple gave them a positive picture of a same-sex partnership,” Wenig says. “The dissolution of this partnership, particularly the ways in which it ended, has left my side of the family, which frowns on divorce, much more skeptical of the ‘good’ of same-sex relationships. I’m only glad my parents did not live to witness it.”
One of the things—besides the law—that may make divorce especially difficult for gay people is the way it seems to prove, despite the statistics, old slurs about their relative inability to maintain stable bonds. On a larger scale, gay divorce may be used to undermine arguments for gay marriage in the first place. But Evan Wolfson, the founder and president of Freedom to Marry, says the opposite is true. Access to divorce, he often tells straight audiences, is a key justification for legalizing gay marriage. “They have to think,” he says, “but when they do, they get it.”
What they get is that people need safe ways to exit relationships, and not just because there’s been an affair or one spouse cannot stand a single day more of the other’s socks on the floor. Sometimes, gay or straight, you find yourself trapped with someone different from the person you married, and the situation is more than depressing: It’s dangerous.
That was the case for a man in his sixties I’ll call Geoffrey. As his need for a pseudonym suggests, his divorce is still being litigated, and he fears inflaming his ex, a man I’ll call Carl. Partnered for more than fifteen years, Geoffrey and Carl got married during the California window, largely because Carl suffered from a “major but treatable illness.”
“I thought our marrying would be good for two things,” says Geoffrey. “One, it would help him feel more secure that I wouldn’t abandon him because of his illness. And two, I would be able to get him on my insurance at work. Which was a good thing.” Before the marriage, Carl had suffered two major flare-ups of his illness, which cost Geoffrey “a fortune.” But a third, after they married, was completely covered.