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By Todd Henneman
March 30, 2004
The Advocate

Jack Venzer and Joseph Barri disagree about a basic detail of their relationship. Venzer says it lasted 20 years. Barri says 18. But they agree on one fact: Their breakup was nasty.

Venzer, 49, who describes himself as a stay-at-home “classic 1950s housewife,” wanted to remain in the 23-room house that he owned with Barri in Milton, Mass. Barri, 57, a partner in a Boston law firm, initially offered to pay Venzer $72,000 palimony for 10 years, list him as the beneficiary of a $500,000 life insurance policy, and split equally the proceeds from selling their house. He was not legally obligated to do that, and Venzer calls the initial offer “extremely generous monetarily” but says he could not accept his former partner’s demand that he leave the house, even if it never sold. He brought a lawsuit against Barri, and Barri withdrew his offer as the dispute went to family courts. Most divorce laws place gay and lesbian couples in those venues, which are accustomed to emotional breakups and able to protect the weaker spouse from injustice.

Some gay and lesbian couples who decide to marry in Massachusetts could get a crash course in how legal divorces differ from past breakups: Not only will their split require a judge’s signature, it also could require one spouse to pay alimony, share retirement savings, and split up a lifetime’s worth of belongings. And divorcing isn’t cheap. After attorneys’ fees, the process can cost anywhere from $1,000 to $100,000, experts say. In Massachusetts, if a gay couple marries and later files for divorce, the state will issue an automatic restraining order that prevents either spouse from selling assets associated with the relationship. To decide what’s fair, Massachusetts judges consider factors such as the length of the marriage and the health of the spouses. In other words, it can be one legal headache. “Right now it’s fairly easy in same-sex relationships for one person to just walk away and not give any economic support to their former partner,” says Brad Sears, director of the Williams Project on Sexual Orientation Law at the University of California, Los Angeles. “Marriage changes that.”

Venzer is convinced that he would have received a better settlement if the couple had been married. The two men, who separated in 2000, reached an agreement in 2003 that allows Venzer to live in the house until it’s sold, entitles him to the first $300,000 from the house’s sale and 50% of the remaining proceeds.

“To me, one of the advantages of being able to get married is being able to get divorced,” says Joyce Kauffman, a family law attorney in Cambridge, Mass. “Right now gay people don’t have the structure that the divorce laws provide to heterosexual married people. They have to rely on more difficult legal theories to prove that they have a right to the distribution of assets.” Some gay and lesbian couples will also have to deal with no-fault divorces, in which the spouse suing for divorce doesn’t have to prove the other spouse did something wrong. That doesn’t mean one person won’t end up owing their former partner money, says Frederick Hertz, an attorney in Oakland, Calif., and coauthor of A Legal Guide for Lesbian & Gay Couples. “No-fault (divorce) is going to be a big shock,” Hertz says. “It’s a concept that has not caught on in the gay community. It’s like, ‘He left me and I have to pay him money?’ ”

And don’t forget no-fault divorces where a spouse could owe alimony to someone who caused the breakup, says Frederick Hertz, an attorney in Oakland, Calif., and coauthor of A Legal Guide for Lesbian & Gay Couples. “It’s a concept that has not caught on in the gay community,” he says. “It’s like, ‘He left me and I have to pay him money?’ ”

As couples granted civil unions in Vermont have learned, obtaining a divorce is tricky. Judges in other states have been hesitant to grant dissolutions for civil unions because they believe that granting them implies a legal recognition of the unions within their state. Similarly, couples who marry in Massachusetts should not expect the courts of other states to grant them divorces, warns Nancy Polikoff, professor of law at American University Washington College of Law. Divorcing couples might have to make one last trip together—back to Massachusetts, to make the split official.