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After Gay Marriage Comes ... Gay Divorce

by Scott Stiffler
Contributor
Thursday Aug 21, 2008
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First comes gay love, then comes gay marriage. Then, all too often, comes ... divorce.

In Massachusetts, this new twist on the old rhyme no longer raises eyebrows. Before they get to the part about pushing a baby carriage (or, more complicatedly, after), some gay marriages are destined to take an unexpected detour into the realm of gay divorce.

That’s where Peter Zupcofska, Esq., comes in.

Attorney Zupcofska is a partner at the Boston law firm Burns & Levinson who has specialized in family law for nearly three decades. More recently, he’s carved out a high-profile niche in the burgeoning field of same-sex divorce proceedings.

Zupcofska was helping Bay State LGBT partners amicably part ways long before his home state granted them the right to marry.

"I had developed a reputation for doing breakup agreeements in the gay and lesbian community as an offshoot of my family law practice." explains Zupcofska. "Before gays and lesbians could marry, the only protections they had when a couple split were quasi contractual laws that could be cobbled together in an attempt to sort out an equitable division of their assets."

As a member of the Boston Bar Association Family Law Steering Committee, Zupcofska became active in the Goodridge case, the appellate court case that legalized gay marriages Massachusetts. He, along with colleagues in his firm, co-authored the amicus curiae (friend of the court) brief. After that, his visibility as a knowlegeable advocate for LGBT legal rights expanded. Since then, he’s been asked to asess what the impact of gay marriage by a number of legal seminars, media outlets and organizations such as GLAAD.

For Zupcofska, the protections afforded under Massachusetts divorce law are among the greatest benefits to come from the state’s pioneering recognition of same sex unions: "Marriage changes the whole complexion of a breakup, because of the protectons bestowed upon a spouse who doesn’t have shared assests in his or her name."

Unlike palimony cases (like the one involving Liberace’s chauffeur and purported lover), divorce laws take into account the partner whose name isn’t on a deed or bank account. Such provisions, which account for a more reliable form of equitable distribution, are the source of Zupcofska’s observation that "one of the greatest and most important aspects of marriage is the gift of divorce law."

In 2005, Zupcofska and his partner took the plunge themselves. This past July, they marked 12 years together. "When marriage became available, it became the natural thing to do." Still, he notes that the marriage was preceeded by an understanding of what divorce would mean with all of its implications.

The Evolution of Gay Divorce
Massachusetts’ Probate and Family Court (where divorce takes place) doesn’t keep statistics on same-sex divorces. However, Zupcofska cites anecdotal evidence that the first wave of divorces were mostly from marriages "that came in the heat or politics of the moment; younger gays and lesbians who got married as a radical political statement."

Another significant category, he added, were those whose relationshis were not doing well: "They thought marriage woud bring them together, but it didn’t work." There were also a great deal of relationships that were marriages in every sense, but lacked the formality of a certificate; partners who got married so they could have the benefits and protections of divorce.

Zupcofska recalls many financial and emotional horror stories from the days before marriage afforded LGBTs the legal scrutiny of divorce: "I have dealt with clients who were in long-term relatonships that were not going well. If they had $3 million to divide up, they’d be lucky to walk out with $100,000 and the clothes on their back."

Because of the complexities of palimony and the nature of custom-made contracts, "You’d spend $100,000 on attorney fees. For married couples, the chances of a 50-50 division of wealth are much greater."

Still in its relative infancy, same-sex divorce remains a greater financial burden on couples who have to navigate a minefield of inexperienced judges and uninformed attorneys--as well as the Defense of Marriage Act.

"When straight people get divorced, there are provisions of the internal revenue code that suspend certain tax consequences," Zupcofska says. Because same sex mariage is not recognized federally, it prevents gays and lesbians from taking advantage of tax issues, social secutiry benefits, and pensions that allow for the transfer of retirement benefits to a spouse.

All of these factors reinforce the notion that LGBTs looking for a divorce lawyer must to be informed consumers. Knowledgeable attorneys who "can educate a judge about the unique needs of a gay or lesbian in a contested manner" are of particular importance when there are custody matters at stake, Zupcofska says: "There are more paternity suits filed in Massachusetts than divorce options."

As for the number of proceedings he’s facilitated thus far, Zupcofska’s only done about 10. But is there a difference between gay and lesbian divorce?

Asked to dish on the epic hissy fits that surely must take place in his office when two scorned men face off, Zupcofska defers to attorney-client privilege. He does, however, offer the observation that "lesbians are fighting more about children, and gays are fighting more about housing and personal property."


Next: The Shame & Future of Gay Divorce



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