The day begins before dawn, with about 40 bleary-eyed people climbing aboard a charter bus at 5 a.m. sharp at Metropolitan Community Church of Greater Saint Louis in Soulard. Despite the hour, everyone is joyful, snapping photos and breaking into choruses of "Chapel of Love." There are old folks, young folks, white folks, black folks, pregnant folks, folks who've been together months and folks who've been in committed relationships for decades.
The flat highway stretches before them as the sun comes up and climbs the sky over the heartland. They file into the Johnson County Administration Building in Iowa City en masse and then, Iowa marriage licenses in hand, hop over to the Unitarian Universalist Society of Iowa City. Two and a half hours, three officiants and twelve weddings later, they jam themselves, exhausted, back onto the bus.
Sixteen hours and almost 600 miles later, the day is officially...meaningless.
The twelve newly married couples from in and around St. Louis traveled to Iowa to take advantage of that state's marriage laws. Any two non-related adults — regardless of gender — can marry in Iowa, with no waiting period to establish residency. And all the couples on the bus that sunny, mild Friday in October were same-sex couples.
Yet in Missouri, same-sex couples are expressly prohibited from marrying. Nor does the state recognize same-sex marriages performed in other states.
From a legal standpoint, back home in Missouri, the newlyweds' marriage certificates amount to no more than fish wrap.
Since 2009, when an Iowa Supreme Court ruling extended marriage rights to all unrelated adults, with no residency requirement, nearly 90 couples have taken the long bus ride from St. Louis to Iowa City with Show Me No Hate, the St. Louis-based marriage-equity group that charters the buses. [Editor's Note: A correction ran concerning this paragraph; please see end of article.]
As the country's marriage laws evolve and change to suit the mindset of each state's citizens, same-sex couples find themselves in a unique bind. Their marital status can change when they cross state lines, which makes moving a potential nightmare.
What's even more complicated — and potentially more of a disaster — is what happens when such unions end.
Same-sex couples who seek divorce are coming up against a patchwork of laws that are shifting constantly and almost never offer the same protections that divorce laws offer opposite-sex spouses who split. Add in the fact that most states have far more onerous residency requirements for divorce than marriage, and some couples are forced to try to move on with their lives even while married to someone from their past, stuck in limbo until the laws catch up to the new reality.
The federal government's position, clarified with 1996's Defense of Marriage Act, is that marriage is reserved for one man and one woman, and that no state is required to recognize marriages from a state that doesn't adhere to this tenet. Most states don't allow same-sex marriage, and most states don't recognize same-sex marriages from other states.
In five states — Connecticut, Massachusetts, Iowa, New Hampshire and Vermont, as well as in the District of Columbia — marriage is legal for same-sex couples. Same-sex couples who are residents of those states can divorce exactly as opposite-sex resident couples can. In New York, Rhode Island and Maryland, same-sex marriages are recognized but not performed. Same-sex divorce laws in those three states are evolving now.
In Missouri, as in all remaining states, the Defense of Marriage Act defines marriage as between one man and one woman. And an additional state amendment in Missouri, overwhelmingly passed in 2004, explicitly bans same-sex marriage.
Same-sex couples frequently cross state lines, making marriage pilgrimages like the dozen St. Louis couples did in October. But it doesn't mean they have the same rights back at home — often, they aren't considered married at all.
And that leads to serious complications when those marriages end.
When a heterosexual couple divorces, they can draw on decades of legal precedent. States have established ways to divide up property that the couple acquired as a unit, regardless of who literally did the purchasing.
For couples who are legally married — and that only means heterosexual couples here — Missouri is an equitable-distribution state: Say a couple buys a house together, but the wife has the better-paying job, and so she pays more of the costs during the marriage. If the husband gets primary custody of the children in a divorce, the court might decide it's in everyone's best interest for him to remain in the house. Equal? No, but equitable.
But when there isn't the legal mechanism of divorce in play, a pair trying to divide assets has to prove, literally, who paid for each and every item. Did you save the receipt for your toaster?
Attorneys who specialize in divorce and real estate and property division say that such splits can be extremely tricky. When couples who aren't married in the eyes of the law seek to divide their property, titles and receipts are all they legally have to go on. It's possible for one party to end up broke after years of keeping house and not working while the other party functioned as the primary breadwinner.
When things end relatively amicably, many couples seek mediation, where they draw up a binding legal document with the help of a professional. Ideally, though, attorneys who specialize in dividing same-sex (or unmarried opposite-sex) unions say they should have started drawing up documents that codify the relationship — including how it will end — as soon as they got butterflies in their stomachs for each other.
"It's a very unfortunate thing that you plan for the demise of a relationship," says Todd Sivia.
Sivia is a business and real estate attorney turned same-sex law specialist in Edwardsville, Illinois. (His firm, Sivia Business & Legal Services, snapped up the domain www.samsexlegal .com last year.) He got into the business of teasing apart complex relationships in 2007 when a woman facing a split from her partner of 21 years came to him after family-law attorneys turned her down.
"Yes, there's a lot of emotion to it, but you have to look at it as a legal partnership between two individuals under the law, with an equitable part of the interest," he says.
Essentially, says Sivia, couples who don't have the benefit of federally recognized marriage must do more homework to ensure things are fair between them. It's certainly less romantic and less easy.
"In a marriage, you say, 'Let's figure out the value of all these assets and divide by two.'" When it's not a marriage — as out-of-state same-sex marriages are considered in most states — "you have to go back through every receipt and say, 'Who bought the Crock-Pot?'"
Trying to blend property in the first place is fraught with peril, too.
"Say John puts Matt on the deed to a piece of property," Sivia says. "He just gifted half the house to him — say the house is worth $150,000. He just gave him a $75,000 gift. They're required to pay a gift tax." That's a substantial chunk of change — a penalty that a woman putting her husband on the deed to her house need not concern herself with.
Sivia, like others in the emerging field of same-sex law, contributes to and draws from information at the National Institute for Domestic Partner Estate Planning, a project of Raleigh, North Carolina's Jeffrey Marsocci. Marsocci's book, Estate Planning for Domestic Partners, spells out strategies for unmarried couples of all stripes.
Whether gay or straight, married or unmarried, couples often have incorrect ideas about what they're entitled to and how best to protect themselves, Marsocci says. He believes they're well served by treating their partnership like a business relationship. One solution is to put assets into a joint revocable trust.
"We can separate on paper who exactly is the real end-of-the-day owner of those assets," he says. "If the IRS looked, they'd see they're both controlling things."
That's useful at the beginning of relationships and also in the event that they end.
"The domestic-partnership property agreement we usually use in conjunction with the trust acts like a prenup," he says. While bringing the assets together, "we're spelling out who really owns what, be it one, the other, 50-50. This is a contract. That kind of provides a framework for dissolving the relationship."
Michael Tramble, a St. Louis mediator who specializes in same-sex dissolution, says mediation is a sane and respectful, not to mention less expensive, way. (While he has a law degree, Tramble isn't an attorney, but the agreements he helps couples draw up are binding.)
"There are some everyday basic things — who gets to stay in the house? Parenting plans — how's it going to work out? Who has physical custody? Any financial arrangements, maintenance and child support — these basic things would happen in any relationship. An attorney is going to deal with it in a very legalistic way. They'll try to get the most money in a way that doesn't respect the relationship."
Susan Block is a former family-court judge in St. Louis County Circuit Court who currently practices family law. She says that, unfortunately, same-sex couples need to realize that, married or not, once they're in Missouri, they do not have the legal rights that come with marriage.
"It's sort of irrelevant that they got married in another state," Block says. "The marriage may be meaningful to them, that they made the commitment. When they come back to Missouri, what they are is a couple who lives together."
When she gets calls from couples splitting up, Block advises them to try mediation first.
"If they can't, though, sometimes it gets a little ugly. They can file a suit in partition and ask the court to order the property to be sold and divided, so that takes care of the property," she says. "But there really is no vehicle to dissolve their relationship. As far as a lot of the rights that married couples get, an equitable distribution of marital property and debt or attorneys' fees and allocations, there is not much of a remedy."
Block knows how unfair all that is. When asked what out-of-state same-sex married couples should do if they want a divorce, she laughs ruefully. "Drown themselves in the Mississippi!"
Adam Sorkin is a Harvard-educated attorney practicing law in Chicago. He's also still married to his college sweetheart, even though the two men went their separate ways almost two years ago.
"We started going out the first day of class my freshman year," he says. When Sorkin got into Harvard Law School, the pair moved to Massachusetts and got married there, in May 2007.
Then Sorkin and his husband moved back to Chicago. But Illinois, like Missouri, doesn't recognize same-sex marriages. In the eyes of the law, his husband was no longer his husband.
That would become a matter of great significance two years later, in March 2009, when they decided to call it quits.
"We had this marriage that was unrecognized in Illinois," he says. "Our marriage was never recognized here, where we both live."
Without a marriage, they couldn't seek a divorce. And without a divorce, the couple had no guidance for splitting the life they'd made together.
"We had a car and a cat and furniture and joint bank accounts and joint credit cards," he says. "We had to do it ourselves. To untangle that...that's why the state gets involved [in divorces]." But, as a same-sex couple, he says, "We didn't have any guidance from the court."
While the couple remains technically married, Sorkin says they attempted an equitable split of their property. "We tried to dissolve things fairly, but two people never have the same notion of what's fair. I've since bought a condo — is he going to go after that? Technically, we're still married!"
It's possible that his spouse could. The condo could count as marital property, since it was technically accrued during the marriage. Should the men be able to someday seek a divorce, Sorkin's spouse might have a claim on the property.
Not to mention the little things. Filling out a form with check-boxes for marital status, for instance, can be an ordeal. And moving on with a social life? "When you're newly single and starting to date, it's awkward: 'I just want you to know I happen to be married in five states.'"
Missouri is a particularly tough state for same-sex couples. In 2004, 70 percent of voters supported a ban on same-sex marriage over and above the federal Defense of Marriage Act, amending the state constitution to say that "any purported marriage not between a man and a woman is invalid" and "a marriage between persons of the same sex will not be recognized for any purpose in this state even when valid where contracted."
One of the only known challenges to that amendment came in 2008. Two women married in Massachusetts in 2005 sought an annulment of their marriage in Buchanan County, Missouri.
One of the women wanted the marriage declared over. Because divorce wasn't an option, she sought an annulment, which, legally speaking, would be akin to declaring that the marriage had never taken place. While the state wouldn't grant the women a divorce, the annulment would allow them to marry again and close the question of marital property.
But before they could receive their annulment in June 2008, state senator Delbert Scott, a Republican from western Missouri, attempted to intervene by filing an amicus brief in the otherwise low-profile case.
In his brief, the senator wrote that the state had no interest in dissolving a union it didn't recognize and that Missouri didn't have jurisdiction over the marriage in the first place. He argued that the women should be left without any legal remedy for ending their relationship.
The judge ultimately granted the annulment, despite Scott's attempts to insert himself (and politics) into the case.
Today, Scott stands by his intervention.
"They weren't married in the first place," Scott says. "A legal document would validate the marriage. The voters in the state of Missouri have spoken loudly and clearly."
The judgment of annulment granted to the women states that "upon hearing the arguments of counsel and based on the pleadings the ourt finds the purported marriage...is void ab initio [from the beginning]."
"You know, the outcome doesn't really make any difference to me," Scott says. "It validates something that wasn't legal in the first place. I think we're pretty clear in Missouri that it should not be allowed. It was never legal, and I don't think humaneness or sympathy has anything to do with it. It's the law of the state. The people could come back stronger next time.
"Get used to it," he adds.
Kay Madden represented the woman who was served annulment papers by her former partner. Her client, she says, wasn't satisfied with the compromise of an annulment as opposed to a divorce.
"It wasn't satisfactory in that the marriage wasn't recognized by the state of Missouri," says Madden. "All it did was say that the marriage never existed, so it let both these women go out into this world." She says they tried to reach a property settlement, but it never came through. (The petitioner in the case didn't respond to requests for an interview, and Madden's client declined comment, saying she's trying to move on with her life.)
"With divorce, we have multiple statutes and volumes of case law telling how the property, all the issues in the dissolution of a marriage, should be dealt with," Madden says. "There's not nearly as much guidance when it comes to dividing up joint property in a same-sex union."
Often when a same-sex couple seeks to disentangle their ownership in jointly held property, they'll file a partition suit, and a judge finds a way to give each party their fair share. In some cases, a partition suit can end up with shared real estate being sold in a forced sale and the proceeds split, Madden says.
But that only gets at the nuts and bolts of dividing up jointly titled property.
"That doesn't touch the fairness of the partner who has all the employee benefits, the 401(k) — they're all in that individual's name. In a dissolution action, those are forced to be divided. You have this definition of marital property, but that concept doesn't exist in a same-sex partnership."
One 57-year-old woman from Edwardsville, Illinois, can only talk about her experience if her full name isn't used. But W's split from her partner of 21 years and the acrimony and sadness of trying to divide the house they owned together for 14 years illustrates what same-sex couples are up against.
"My house was great," W says. "It wasn't real expensive, but it was great."
And now it's gone. She has been trying to rebuild her life since her partnership ended in 2008, staying with family and friends and trying to make sense of it all.
"But, man, I'm living like I got out of high school," she says. "Everything I built up, it's gone. It's pretty nasty. If it's not on paper, you're not gonna get it."
W met her partner when she was in her thirties and getting out of a relationship she'd been in since she was seventeen years old. While she was fairly well established at the time, she certainly wasn't rich. She was secure in her job and paycheck, though.
"When we first got together, I had the better job. She was laid off a lot — she was in construction. It was one of those things, you don't mind paying for everything. She got enough seniority where she started working more. Usually in the winter she was laid off, but she made beaucoup money when she worked. My job changed — I was a dental technician. I made a lot less. She made the house payments, I paid all the utilities."
Like so many unmarried couples, the pair just figured out a fair way to shoulder the financial burden of the house. But "there was nothing, there was no legal bond," W says. They were beneficiaries on each others' life insurance policies, and both their names were on the deed to the house, but that was it.
Then, unexpectedly, things went very wrong in the relationship. W says her partner became abusive. She filed for an order of protection, and her partner had to leave the house for a time. But before that happened, the partner became destructive of the house and their mutual property. A police officer told W that, because the partner owned half the house, she had no legal redress. He told W the case had to go through civil courts before she could do anything.
"She got everything in the house. She moved it out before the order of protection," says W. "There was no way I could get that stuff back. She took all the warranties, all the bills of sale on the furniture, the furnace, everything. If her name was on it, she took it. We had a safe-deposit box. She closed it. My passport, will, insurance policy, car and bike titles. I had to go and try to get all this info afterward."
Had the pair had the benefit of marriage, possession of the warranties and bills of sale wouldn't have held nearly the same weight. It would have all been considered marital property, subject to equitable distribution in the hands of a judge in family court with experience in dividing up households.
But, of course, they didn't.
W tried to seek representation from three different family-law attorneys, all of whom turned her down. She finally found Todd Sivia, who took the case.
The pair went to court to divide their assets, not as marital property, but simply as jointly held assets, with no chance for equitable property division to be considered. Instead, it was a matter of who had what titles and receipts and how to divide jointly held assets, such as the house, down the middle.
"When the judge got it he said, 'I'm really sorry, I've got a big load.'" W. says. She felt the case was rushed and not given the attention that it merited: " Nobody ever heard my story."
In hindsight, W says it seems clear that legal marriage, or some sort of prenuptial agreement, would have saved her a lot of hassle and heartbreak. "It would have been wise to do it for the legal protections," she says.
Back in Iowa City in October, the dozen couples on the bus have many interpretations of what a wedding looks like. Some, who don't have the support of their families, have come alone. Others have brought an entourage, such as the pair of women who recently graduated from high school. They walk down the aisle in jeans and T-shirts that say, "Marriage is so gay."
One tattooed bride, radiantly pregnant, walks down the aisle of the drafty church in a shimmering platinum goddess dress with an empire waist to accommodate her baby bump. A pair of men look almost exactly alike in chambray-colored button-downs and khaki pants. Two pairs of women who have more than 50 years of commitment between them wear pants and jackets with precise angles. Some of the couples have written vows for each other.
Rabbi Susan Talve conducts a traditional Jewish ceremony, complete with stomped-on glass. She praises the couples for having the "holy chutzpah" to make a stand. She employs the same chuppah she's used for dozens of same-sex couples, going all the way back to the first pair she married in Iowa: Ed Reggi and Scott Emanuel.
The husbands are activists in St. Louis' LGBT community. Reggi runs Show Me No Hate, which sponsors the bus trips. Emanuel works with a group called Growing American Youth that supports LGBT youth as they navigate growing up in the Bible Belt.
Reggi and Emanuel were among the first St. Louis residents to marry in Iowa City. Since their own wedding in 2009, they've chartered buses full of same-sex couples eager to formalize their unions up to the Hawkeye State.
"I do so many weddings," says Rabbi Talve. "It's bittersweet. It's quick; their families and friends aren't here. God's will, they'll all have big weddings soon. They've been negotiating this for a long time, piecing legal things together."
And it is piecemeal.
"It's a service we provide in this office," says Kim Painter, the Johnson County recorder. She speaks above the din of a dozen couples jamming the county office that fall morning, filling out paperwork to get Iowa marriage licenses — so coveted, and yet legally toothless once the bus crosses state lines. "We're happy to provide it. Anytime anyone gets married, it's a joy. It raises very unique legal questions and always has."
Despite being starry-eyed and blissful on their big day, the couples are aware that the Iowa ceremony doesn't bring them the full complement of benefits that a federally recognized marriage does. They know they're pioneers.
"We're certainly waiting for equal rights on the federal level. That's where it counts the most," says Elsbeth Brugger, milling around the church basement before the ceremony that will solidify her bond to Gretchen Vander Meulen after nearly 23 years together. "It's an equal-rights thing! If it had been legal to get married, we'd have done it a long time ago."
"When it became legal in a few states, we thought we'd do it," says Vander Meulen, a native Iowan who is proud of her state's progressive stance. "Iowa has always been a leader in education, making decisions for people that make common sense. The more LGBT people take this step, the more it affirms that it's for everyone's benefit."
Before the ceremonies begin, the Reverend Benjamin Maucere of the Unitarian Universalist Church addresses the crowd of couples.
"It's very exciting to me after performing commitment ceremonies for years, to be able to say, 'By the power vested in me by the state of Iowa,'" he says. "For us, it's social justice."
One month after the trip to Iowa, newlywed — and newly named — Alvin Hotop-Hill is still basking in the glow of his wedding. (His partner, the former Ryan Hotop, is now Ryan Hotop-Hill.) At their wedding, the pair sported matching tracksuits and boutonnières. They were accompanied by Alvin's younger sister, who was fierce in black-and-white camo pants and jacket with over-the-knee stiletto patent leather boots.
Alvin is thrilled with the solemnity of his bond to his husband but realizes it's symbolic. "The marriage vows are so serious, regardless of the fact that Missouri recognizes it or not, we recognize it in our hearts. We recognize it."
In terms of legal protection for their union, an attorney has drawn up living wills for the pair and assigned each power of attorney over the other. Despite the romance of his wedding day, Hotop-Hill is pragmatic about the ramifications.
"We went to Iowa; those people were so ingratiating," he says. "Part of it has to do with the fact that there's a whole lot of revenue going to that state and the city. How dumb is that? You know what? Missouri needs to get on board."
It feels almost vulturelike to ask a man one month into his marriage about divorce — but the question is there for both the Hotop-Hills and all the couples who wed that day.
"Tomorrow's not guaranteed to us," he says. "We wouldn't have gotten into this if we weren't serious, but if that were ever to be the case, I would recognize the marriage as legal. It would be a fair division of property. We share that."
Ultimately, what matters to the couple is not the legality of their union in a state that's hours away — much less the fact that their marriage isn't legal in their home in St. Louis.
"One day, it's gonna be a legal thing between the states," Alvin says. For now, he adds, "It's legal in our hearts."Correction published 12/3/10: In the original version of this story, we erroneously stated that Iowa voters extended voting rights to all unrelated adults; in fact, the Iowa Supreme Court passed the law.
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