Federal Statute Muddles N.H. Same-Sex Splits

DOMA Makes Division of Assets More Difficult for Divorce Lawyers

Same-sex divorces are a new and tiny part of New Hampshire’s legal system, but that doesn’t mean the feelings involved are small, or novel.

“They have all the same emotions as opposite-sex divorces: people cheating, not a romantic relationship, people growing apart, domestic violence; whatever the issues that lead people to divorce,” said Kysa Crusco, a family law practitioner in Bedford who has handled about 10 same-sex divorces. “It’s the breakdown of the relationship and all the baggage that comes with it.”

Todd Stevens, of T.W. Stevens Law Firm in Dover, who specializes in divorce and has handled about a dozen same-sex divorces, agrees.

“There’s no difference,” he said of the emotions that he encounters in clients. “It can be painful, difficult.”

Financial and legal questions, however, are another matter.

Since New Hampshire legalized same-sex marriage in 2010, the same state laws apply when dissolving a marriage, regardless of the parties’ gender. Things are different on the federal side, however, because the 1996 Defense of Marriage Act forbids the recognition of same-sex marriage.

The result? “Any benefit or any right to a benefit that is governed by federal law is not applicable to a same-sex couple,” said Stevens.

That includes pensions, taxes, certain types of property division — lots of things, most involving money. Consider pensions, in which a certain sum is paid each month for the remainder of a retirees’ life, Stevens said.

“In a pension, you don’t really know at the time of divorce what a pension is worth. In state law, there’s a formula for dividing it up, but under federal law that’s not applicable,” he said. “So it’s more of a contractual dividing up, you have to negotiate: You won’t get my pension, so we have to take into account other assets, other factors, when dividing up assets and debts of parties.”

By contrast, he said, ‘‘New Hampshire statute governs how health insurance is divided — that makes it a lot easier to divide up a health insurance benefit.”

These questions might be complicated but they’re not very common. The total number of same-sex divorces throughout New Hampshire since same-sex marriage was legalized, including annulments and separations, is only 84.

“I’m surprised it’s not more,” said Stevens.

Neither attorney had seen these numbers because they hadn’t been disseminated; when The Telegraph obtained them from the state Division of Vital Records, we were told it was the first time anybody had asked for them.

With same-sex marriages increasing, it seems inevitable that divorces will increase, too

“It’s such a relatively new thing, that inevitably it will become more frequent. It’s going to become more routine,” said Stevens.

The shifting legal landscape of same-sex relationships has complicated things. New Hampshire legalized civil unions in 2008 and same-sex marriage in 2010. After the latter act, civil union partners had the option of getting married; as of Jan. 1, 2011, those unions were automatically upgraded to marriage.

During that period some same-sex civil unions also were divorced, although that’s not the legal term; those break-ups are not included in these numbers.

In the courtroom, the newness of same-sex marriages complicates things because of lack of legal precedent — that is, lack of decisions handed down by the state or federal supreme court that would guide judges in lower courts.

“I’ve litigated cases in the family division and had orders issued, but it didn’t get to the Supreme Court so it’s not precedent,” said Crusco.

As an example, she pointed to the question of how long a marriage has lasted before divorce, a major factors used by judges which dividing up assets. Should the period of civil union be counted as marriage in the calculation? How about the prior relationship, when legal marriage wasn’t possible?

“I had a couple that had a two-year civil union and a 12-year relationship, but the trial court in the family division said it’s a short-term marriage,” she said.

In Massachusetts, the supreme court has ruled against “retroactive marriage” — that is, judges shouldn’t count anything before legal marriage occurred.

Another common problem, said both attorneys, is couples in other states where same-sex marriage isn’t recognized and who came to New Hampshire to get married. Under state law, nobody can get divorced in New Hampshire unless they are legal residents of the state, which usually means living here a year.

Same-sex litigation brings up some minor problems, too.

“Some of the funny issues are the names,” said Crusco. “You’ll go into court and say Mr. Smith and Mrs. Smith when giving your speech to the court, but you can’t do that. So in the beginning of the case I say I’m going to refer to John Smith as John and Jim Smith as Jim — you can’t say Mr. Smith and Mr. Smith.”