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For gays, divorce may soon be a useful right

As the Supreme Judicial Court decision allowing same-sex marriage was being hailed as a huge victory for gay and lesbian couples, largely lost in the celebration was recognition of an equally powerful benefit that flows from the ruling: the right to divorce.

 

"People aren't coming out to celebrate the right to divorce," said Suzanne Goldberg, a professor at Rutgers School of Law in Newark. "But it may turn out that the right to divorce is as important to celebrate as the right to marry."

Last month, as the SJC became the first state supreme court to rule that same-sex couples have the legal right to wed, euphoric supporters popped champagne corks. Gays and lesbians across the state proposed to their partners, and some began to plan elaborate weddings.

Hardly anyone was thinking about getting divorced. But in a nation where roughly half of married couples split up, analysts expect that a similar number of gay couples who marry would also eventually seek to end their legal unions.

If same-sex couples are permitted to marry, they would be subject to the same Massachusetts divorce laws that oversee the legal breakups of heterosexual couples. "Gay divorce, if this law goes through, will look like anybody else's divorce," said Nancy Van Tine, head of the domestic relations department at the Boston law firm Burns & Levinson.

Lawyers see divorce laws as protection for couples who split up, especially for the spouse who makes less money or wields less power in the relationship. Now same-sex couples who break up, even those who have been together for decades, get little protection from the courts, unless they took the unusual step of signing "a relationship agreement," a formal contract that spells out what will happen in the event of a breakup.

But for most same-sex couples who break up, there is no right to alimony or to a fair division of property acquired during the relationship. Those who take their former partners to court face the difficult task of convincing a judge that they have any rights at all.

"Just showing it was like a marriage isn't good enough," said Elaine M. Epstein, a Boston divorce lawyer. "You really have to show that you have some other cause of action."

For instance, a former partner could try to convince a judge that there was a verbal agreement that he or she would get half the house if they split up, even if the deed is in only one of their names.

Legal analysts have already begun to predict the legal entanglements. For instance, what if a couple marries in Massachusetts and then moves to a state that does not recognize same-sex unions?

"I think all hell is going to break loose when states have to begin to deal with the process of gay divorce," said John Mayoue, an Atlanta lawyer who has written extensively on same-sex unions. "I really think this is where the fight is going to come, and it's going to be chaos."

In Massachusetts, several SJC decisions have already given guidance to judges grappling with issues that involve gay couples and their children. Since 1993, gays have been allowed to adopt their partners' biological children. And three years ago, the SJC ruled that gays can have visitation rights with their former partner's children.

But less clear, under current law, is whether partners who split up can be forced to pay support to a former partner's child they haven't adopted. Last year, Superior Court Judge Spencer M. Kagan became the first in the state to order that a lesbian pay child support to her former partner's biological child, even though she had never adopted the child.

Jack Venzer says his case demonstrates why same-sex couples who split up need the protection of the courts. During his 20-year relationship, he said, he was the manager of domestic tasks, renovating the 23-room house he and his partner shared in Milton.

Venzer, 49, said he raised their children from previous marriages and planned parties for the law firm where his partner, Joseph Barri, became a senior partner. "A lawyer said to me, `You're like the stay-at-home housewife of the `50s,' " Venzer said.

But last year, after he and Barri split up, a court threw out his petition for monthly support from his ex, ruling that there was no legal basis for his request. The house where Venzer has continued to live is for sale, and since Venzer's name was on the deed, he and Barri will split the proceeds. But Venzer, who has AIDS, says he has no income and is now unable to work.

"Without the automatic rights that a married couple gets, I'm entitled to absolutely zero," he said.

Barri could not be reached for comment. Epstein, Barri's lawyer, said the two men had resolved their differences. She said the case was not an example of a same-sex couple harmed by the lack of laws protecting their breakup. "It was a very fair settlement, ultimately," she said.

Lawyers say that if same-sex couples are allowed to marry in Massachusetts, it will ultimately be up to the courts to decide whether gay marriages and gay divorces must be recognized in other states.

Couples united in civil unions in Vermont -- the first state to endorse legal, marriage-like unions for same-sex couples -- have found that only Vermont residents can legally have their civil unions dissolved in that state.

Nearly 6,500 civil unions have been performed in Vermont in the three years since the law went into effect. Only about 1,000 involved Vermonters; of those, 23 have been dissolved.

A Connecticut man tried to legally end his Vermont civil union in a Connecticut court, but the case was thrown out by a judge. In July 2002 the Appellate Court in Connecticut upheld the judge's decision.

Kathleen Burge can be reached at kburge@globe.com.

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