a slew of marriage cases in NY

NY Court Hears Lesbian Divorce Case
by 365Gay.com Newscenter Staff

Posted: February 26, 2008 - 1:00 pm ET

(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."