The gay divorcees

IN MAY 2004, gay couples joyously smashed a legal barrier, celebrating the country's first same-sex marriages. Less than two years later, some of those couples find themselves on the edge of a less joyous legal frontier: They're divorcing.

More than 7,300 gay and lesbian couples have married in Massachusetts according to the Department of Public Health, and somewhere between 35 and 45 of those couples have since filed for divorce (according to an informal survey-the state's probate courts don't officially track gay divorces).

Gay divorces were of course not unexpected. Twenty percent of heterosexual couples either separated or divorced within the first five years of marriage, according to a 1998 report by the federal Centers for Disease Control and Prevention. And in Vermont, which began allowing civil unions in 2000, 91 of the state's 7,828 unions have since been dissolved.

But in addition to the standard questions about dividing assets and paying alimony, same-sex couples also find themselves confronting a host of sticky legal issues not faced by heterosexual couples, complicating a process that even under the best of circumstances can be emotionally exhausting and expensive.

''There are no definitive answers," said attorney Joyce Kauffman of Cambridge, who is the chair of the Family Law Section of the Massachusetts Lesbian and Gay Bar Association and has handled three divorces in the growing field. ''It's all so new, it's hard to predict how it will play out."

Many of the problems stem from the fact that Massachusetts is the only state to recognize same-sex marriage. Massachusetts state law allows residents to file for divorce, but it does not allow out-of-state residents to do so, unless the cause of the divorce-an act of infidelity, for example-occurred here.

Lawyers say this restriction could create some truly knotty legal situations. Say an out-of-state couple wants to divorce, but their state doesn't recognize that they were married in Massachusetts. Could one of them legally marry a heterosexual partner, without divorcing the gay partner? What if that person died and both legal spouses claimed the assets? ''Are you getting the sense it's a mess?" asked Lisa M. Wilson, a Newton lawyer who handles gay divorces.

Then there's the federal government. For federal tax purposes, alimony is normally deductible for the person paying and counted as income for the person on the receiving end. But same-sex marriages have no standing in the eyes of the IRS. ''We don't recognize gay marriages," said IRS spokeswoman Peggy Riley. Same-sex couples need to file as single people, rather than as a couple, she said, and they can't enjoy the alimony deduction.

Even seemingly basic aspects of a divorce are more complicated for same-sex couples. A major problem, for instance, arises in calculating the length of relationships, an important factor in a court's decision on how to divide assets. How will a divorce court view a gay couple who lived together for 20 years but were married for only one year? ''Technically, the court could say it's a short-term marriage, but it really is a long-term marriage because they couldn't get married before," said Kauffman. ''There's very little case law and nothing in the statutes that addresses that."

Still, gay couples have seemed to welcome the legal framework of divorce, which at least provides some structure for resolving problems. Before same-sex marriage, a couple breaking up might sue each other in multiple courts to divide possessions-one court for real estate, another for personal property, and so on. ''The big advantage with divorce is that there are state-made rules of the game," said Elizabeth Bartholet, a professor at Harvard Law School who specializes in family law. ''It's important for people to know if they enter into a marriage what the rules are with respect to splitting up."

Matt Carroll is a Globe reporter. E-mail mcarroll@globe.com.