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365Gay.com
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NY Court
Hears Lesbian Divorce Case
From the
Web, February 26, 2008
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New York City -- In what is
believed to be a groundbreaking ruling a New York City judge says that the
ruling by the state's highest court that found there is no constitutional right
for same-sex marriage does not apply to divorce.
The ruling by Supreme Court Justice Laura Drager allows a Manhattan woman to sue
for divorce from her same-sex partner whom she married in Canada in 2004.
Drager found "that out-of-state same-sex marriages are properly recognized under
our law," and therefore "Beth R." can proceed with her case against "Donna M.".
R is seeking the divorce and the awarding of joint custody of M's two children.
Because the children are minors the women are identified only by letters.
M had sought to have the divorce petition quashed on the grounds that New York
State does not recognize same-sex marriage.
In her ruling Drager said that New York does not recognize an out-of-state
marriage in only two instances: if it is specifically named by the
Legislature as prohibited or is "abhorrent to New York public policy."
The written ruling noted that the Legislature has not specifically outlawed
out-of-state same-sex marriages, and that "the abhorrence exception is so narrow
that it has been applied only to marriages involving polygamy or incest."
An attorney for M told the New York Post he will appeal.
The case will likely be decided by the New York Court of Appeals, the state's
highest court in light of an appeal of a similar ruling this month by an appeals
court in Rochester.
In that case the Appellate Division of state Supreme Court reversed a lower
court judge's ruling in 2006 that Monroe Community College did not have to
extend health benefits to an employee's lesbian partner.
Patricia Martinez, a word processing supervisor, sued the school in 2005,
arguing that it granted benefits to heterosexual married couples but denied them
to Martinez and her partner, Lisa Ann Golden.
The couple were married in Canada in 2004.
In 2006 the New York Court of Appeals, the state's highest court, ruled that
same-sex couples do not have a constitutional right to marry. It said that
the issue, however, could be taken up by the Legislature.
In April, last year, Gov. Eliot Spitzer became the first governor in the country
to introduce same-sex marriage legislation.
Last June the Democratically-controlled New York State Assembly passed the
legislation but the GOP-controlled Senate has refused to take up the bill.
Meanwhile, in a separate case being played out in Manhattan, a woman is suing
her former partner for a split in the couples assets even though they were not
married.
Molly Caldwell says she and heiress Halina Avery were in a committed
relationship for 14 years, sharing rings and a home in a toney Manhattan co-op.
When they split up in 2006 Avery moved to seal off Caldwell from her assets.
Caldwell is seeking spousal support and an equitable distribution of assets.
"This was, for all intents and purposes, a marriage," the New York Daily News
quotes Caldwell's lawyer, Aaron Goodman, as saying. "They should be
treated no differently than the parties in a divorce."
But attorneys for Avery say the women had a signed agreement that limited what
Avery's responsibilities would be if the relationship soured and that Caldwell
is trying to apply the legal terms of marriage to the relationship when they
were not married.
"They never entered into, nor intended to enter into, a marriage," lawyer Yetta
Kurland told the News. "If they had intended to marry, or file as domestic
partners in New York City, then they would have done so."
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