By Chris Kramer
Total Divorce has reported in recent months on developments in the institution of same-sex divorce. Late last year, a Rhode Island court ruled that same-sex couples cannot legally divorce under state law. Last week, though, a New York court faced with a similar question came to a very different conclusion.
Two women, known to the press as "Donna M" and "Beth R," are at the center of the latest debate on gay marriage and divorce rights, according to GayCityNews.com. The women were reportedly married in Toronto in 2004 and have two daughters, both born to Donna M from artificial insemination.
Sources indicate that the women decided to end their relationship in September 2006, but continued living together for several months. Then, in April of last year, Donna M allegedly served Beth R with a "notice to quit," in an effort to have her find another place to live.
In response, Beth R evidently sued her partner for divorce - a move that Donna M contested on the grounds that the marriage was not legal under New York law.
But New York Supreme Court Justice Laura E. Drager apparently denied Donna's motion to dismiss, effectively allowing the divorce proceedings to move forward.
Sources report that Drager's decision is based on New York law that recognizes out-of-state marriages: the only ones not recognized are those considered "abhorrent" or prohibited under New York law. But records show that historically, only marriages involving incest and polygamy have fallen into the "abhorrent" category.
It seems the ruling is based on the fact that New York laws that do not explicitly prohibit the state from recognizing marriages between people of the same sex.
But, according to the New York Post, not everyone is on board with Justice Drager. Donna's divorce lawyers reportedly plan to appeal the ruling, and have interpreted the decision as the creation of a new law - a job that's reserved for the legislature, not judicial officials.
Beth's request for custody of the children, too, has raised issues of maternity, according to sources. Apparently, Beth never legally adopted the children, though she helped raise both from birth. The issue of custody has come into play in previous same-sex divorce cases, since the gender factor throws a wrench in the policy adopted by many courts of awarding primary custody to the mother.
This issue is indeed heating up across the country. The California Supreme Court is currently hearing testimony on the legality of gay marriage in that state. The New York Times reports that this case could prove to be the most important case for same-sex marriage since Massachusetts's legalization of same-sex unions several years ago.
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