Family Law

Next week, same-sex couples across the country who want to marry will be welcomed in California. But what happens if they later want to divorce?

That is one of the many legal issues that could confront California newlyweds who return to home states where same-sex marriages are prohibited. Unlike a Massachusetts ruling a few years ago, a landmark court ruling last month allowing same-sex marriages in California will permit almost any out-of-state couples to wed there.

But that doesn't mean their lives after the wedding will be easy. Some gay and lesbian couples joined by marriage in Massachusetts or Canada, or under civil unions from, say, Vermont, contend with legal limbo in other states. Among the tricky issues, apart from divorce, that can make the honeymoon feel decidedly over are employee benefits, bankruptcy filings and inheritance rights.

John McCall Jr., a Dallas lawyer who represents gay and lesbian clients in property and custody disputes, says that thanks to the legal thicket same-sex couples can face, his clients "over and over again tell other couples considering marriage to run in the other direction."

Cassandra Ormiston and Margaret Chambers were married in Massachusetts in 2004 but tried, in vain, to divorce in Rhode Island, with the state's high court saying last year that the state defines marriage as the union of a man and a woman. Now, Ms. Ormiston is trying to establish residency in Massachusetts to divorce there.

That can add to an already difficult process. Joanna Grossman, a law professor at Hofstra University School of Law in New York who specializes in family law and sex discrimination, says she has been contacted by more than 50 people who entered Vermont civil unions and now want out. The problem, she tells them, is that you have to establish residency in the state to file for divorce.

To wind down a relationship, same-sex couples have to navigate a process that may force them to appear in three different courts, including a civil court that treats the separation as a business breakup. Says Mitchell Katine, an attorney who handles same-sex separations: "It's not fair to parties to have their relationship of 20 years treated like a breakup of two people who operated a Kinko's."

Health care and other benefits pose similar issues. In May, the Michigan Supreme Court ruled that public employers in the state can't offer health insurance to same-sex domestic partners, because of state law limiting marriage to one man and one woman. In New York last year, a state court ruled that a man couldn't recover workers' compensation death benefits after a partner, with whom he entered a Vermont civil union in 2000, was struck by a car and later died.

The law is far from settled. In February, a New York court ruled that a community college in the state had to recognize a Canadian same-sex marriage for purposes of awarding spousal health benefits. Following the decision, the New York governor's office in May ordered state agencies to recognize same-sex unions from out of state. Then a conservative religious organization sued, arguing that the governor overstepped his authority.

Another issue is health decisions. Texan Dennis Milam, who married his longtime partner last year in Canada, has legal papers authorizing him to act on his spouse's behalf. Still, Mr. Milam says he worries about emergencies. "What if something happens at 2 a.m. and you are upset and don't remember your papers?" he says.

Gay and lesbian advocacy groups, while hailing the California decision, fear the creation of "bad law," or setting unfavorable precedent, that might result if couples try to assert their new status elsewhere. The groups are expected to issue a joint statement Tuesday advising California newlyweds against filing suit in their home states. "We need to lay the groundwork by changing the climate -- convincing community leaders, moving public opinion -- before we rush into court," the statement is expected to say.

Still, a surge in litigation is likely, says Glen Lavy, a lawyer for a group that opposes gay marriage. "We are not encouraging people to bring these suits, but we are prepared to defend marriage wherever these suits occur," he said.

From the Wall Street Journal (subscription required)