D.C. Couples Holding Out for Marriage
Washington Blade
By Chris Johnson
September 12, 2008

Experts say many area gays skipping DP registry, waiting for full rights

Touting a recent report on marriage statistics for gay couples, analysts working with a California-based think-tank say that many D.C. gay couples are holding off entering into domestic partnerships because they see same-sex marriage in the District as being just around the corner.

Experts from the Williams Institute, a think-tank for sexual orientation law at the University of California in Los Angeles, presented an overview of the July report in a panel discussion Tuesday at the university’s Washington Center. In addition to detailing the report, panelists warned gay couples about possible complications brought on by marriage.

The report estimates that there are 3,359 same-sex couples in D.C. and that 18 percent of those couples are registered domestic partners. Researchers project that if marriage became available to gay couples in D.C., 1,680 would marry in the first three years.

M.V. Lee Badgett, research director at the Williams Institute, said in a statement Monday that “marriage clearly gets the most enthusiastic response” from gay couples even when other options are available, such as civil unions or domestic partnerships.

“It may be that less D.C. couples are registering for domestic partnerships because they are waiting for D.C. to extend marriage to same-sex couples,” she said.

During the panel discussion, Badgett said the 2003 court decision legalizing same-sex marriage in Massachusetts “raised expectations” for gay couples and created a “clear preference” for marriage. Badgett said couples in New Jersey and Connecticut, where civil unions are available, are boycotting those agreements because they want to hold out for marriage.

The Williams Institute report also found that there are 85,500 gay couples in the United States and 40 percent of those couples are in some kind of legal relationship. While married gay couples tend to be younger than married straight couples, gay couples tend to marry at older ages than straight couples do, the report states. The Williams Institute also found that two-thirds of married gay couples are lesbian couples.

The divorce rate for married gay couples is about the same as it is for married straight couples — about two percent annually.

Susan Silber, a D.C. based attorney and another member of the panel, offered advice to gay couples on getting married and cautioned them about possible legal consequences. She said it is “wonderful” that gay couples have the option to marry in two states, but she noted that, “because we do not have recognition at the federal level, it is a mess and it is complex.”

Silber said gay couples should not get married if they are planning to adopt children. By noting that they are married on adoption forms, couples would be acknowledging their sexual orientation, she said.

“For international adoptions, in almost every country in the world that is now a problem,” she said.

Silber also advised gays in the U.S. military against getting married because such an act would violate “Don’t Ask, Don’t Tell,” which prohibits gays from serving openly. Even if they did not mention their sexual orientation, gays in the military who get married would be booted from service.

The immigration status and public benefits could also be “very, very vulnerable” for gay couples who get married, Silber said. Additionally, while married gay couples in Massachusetts and California can file joint returns for state taxes, the couples must file separate returns for federal taxes.

The implications of getting a divorce are also more complicated for gay couples, Silber said. While California and Massachusetts have no residency requirements for marriage, couples have to live in California six months or one year in Massachusetts before getting a divorce, she said.

When alimony is part of the settlement for straight couples that divorce, the alimony is tax deductible to the payer and designated as income to the payee, Silber said. This arrangement is “absolutely impossible” for gay couples because the federal government does not recognize the marriage, she said.

The settlement of community property such as jointly owned homes is also problematic, Silber said. While under state law the distribution of this property would be tax exempt, the same is not true under federal law and the property may be subject to a gift tax.

Silber said gay couples can mitigate the consequences of divorce by making a prenuptial agreement that would spell out how they would dissolve their marriage if they cannot get a divorce. For gay couples marrying in California, Silber recommended also getting a domestic partnership because state law says that California retains the jurisdiction for dissolution of domestic partnerships.

Nan Hunter, a Georgetown University professor who was on the panel, also mentioned how divorce can be complicated for gay couples. She noted the case of a lesbian couple that in June tried to get their Massachusetts marriage dissolved in Rhode Island, where they now live. The Supreme Court ruled that Rhode Island could not grant the couple a divorce, which “basically leaves them without a remedy,” Hunter said.

“This kind of situation, I think, is the kind of situation that is going to be most difficult for the courts,” she said. “It will accrue over time as people getting married now ultimately move and some of them seek divorce.”