Gay marriage rings.jpgLast week, the Appellate Division, Third Department, exercised its equitable muscle to filling in the gaps while the marriage and divorce laws of the different states catch up with each other.  On July 21, 2011, in Dickerson v. Thompson, the court granted a dissolution of a Vermont civil union.

Under Vermont law, the civil union entered by the gay couple was not a marriage. As a result, a New York divorce, “no-fault” or otherwise, was not the appropriate remedy. The appellate court noted that as “the plaintiff would be entitled to a dissolution of a civil union in Vermont,” but for her failure to be a current resident of that state. Giving the plaintiff her need relief, the court declared the broad equity powers of the New York Supreme Court were sufficient to declare the Vermont civil union dissolved. Thus, the plaintiff would now be free to marry, domestically partner, or re-unite with another.

While New York tore asunder one gay couple, more than 800 gay couples were able to marry on July 24, 2011, the first day of such unions under New York’s same-sex marriage legislation.  New York is still coming to grips with joining the rest of the country by making the dissolution of a marriage a matter of one spouse’s choice: a simple declaration that the marriage has broken down irretrievably. That law is just under 10 months old.

Expanding marriage while making its continuation a matter of unilateral choice invites an examination of the nature of the marriage contract. As between the spouses, the contract may best be defined, now, by what happens if one spouse decides to get a divorce. It is an “economic partnership,” the fruits of which (i.e., the “marital property”) will be equitably divided.

That was not the contract entered by parties who married before 1980.  They married thinking (if they gave the matter any thought) that “title” to property mattered; that an end to the marriage would not alter the way the parties, through choice or simple power, chose to acquire assets. On the other hand, “till death us do part” had the teeth of lifetime alimony.

However, with the enactment of 1980’s Equitable Distribution Law, New York changed the marriage contract.  Automatic lifetime alimony ended, and a Supreme Court Justice was free to use his (or her) discretion to whack up all but limited classes of property acquired during the marriage.

In 1989, with the enactment of the Child Support Standards Act, the Legislature determined that our Justices’ discretion was not to be trusted completely when it came to awarding child support. Such is now a matter of a presumptive formula.

Since October, 2010, a presumptive formula is now also the basis for the award of an award of maintenance while the divorce action is pending.  It is only a question of time before a formula overshadows discretion as the basis for the post-divorce maintenance award.

As between the parties, then, the marriage contract is one that lasts only so long as both parties want. When one spouse wants out, marital property will be divided and support awarded under formulae continually tweaked by the State.

But some believe a marriage is not only a contract between the parties. For some, it is a contract between the couple and God; a sacrament designed to continue the propagation and socialization of the faithful.  For some, sex, no less cohabitation, no less procreation, in the absence of that contract between the parties and God is sinful and to be damned. Some of the believers in this nature of the marriage contract also made their voices heard as New York welcomed its first gay marriages.

Moreover, even a secular marriage may also a contract with the society which sanctions it. The push for civil unions, domestic partnerships, and same-sex secular marriages was not merely the quest for all couples to publicly declare their current love for each other, and their commitment to each other, at least until one party decides that the marriage has irretrievably broken down.

Marriage brings tax, survivor, medical and estate planning benefits. There are more than 1400 state and federal benefits enjoyed by married couples (although many of which have been limited to opposite-sex married couples under the much-attacked federal Defense of Marriage Act). See, for example:

Who pays for those benefits? Single people do. We all do.

Why? Why do we want our citizens married? What is the contract that a marrying couple makes with us?

Is it the promise to have children and raise them in a “proper” two-parent household? Is it the promise that the couple will take care of each other in their senior years, assisted by those children, so that seniors do not burden us? Is it that married couples make the economy go smoother, more reliably than singles do? Are we better off as a society when our citizens pair off?  If not, then what are we paying for?

And what is the penalty for the couple’s breach? What subsidies do the married couple repay when they (or one party) decide it’s over?

Whatever the marriage contract may be, between the parties, with us, with God, the ceremony is a time of promise and hope; a public commitment by two people to face the world together. It is in that spirit that I, a divorce lawyer and divorced and re-married father of two, congratulate all marrying couples and wish for them only the best.