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VOL. 8 | NO. 33 | Saturday, August 8, 2015

Memphis Divorce Attorneys Prepare for Same-Sex Separations

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Memphis attorneys Miles Mason Sr. and Larry Rice have written the book on divorces.

Each is the author of authoritative guides to divorce law.

MASON

But ask them if they have new chapters to write as a result of the June U.S. Supreme Court ruling legalizing same-sex marriage in all states, and the answer is a quick and casual no.

“It’s going to be a boring transition,” Mason said. “There will be hiccups here and there. You’ll have some judges that are more conservative when it comes to custody issues. But you’ve got that now.”

RICE

Rice said the day of the ruling, his office made the modifications to legal paperwork within about 15 minutes.

“By the end of the day, we had most of our forms modified and ready to roll into the new world,” he said. “It’s like stuff in the stock market. I think so many people saw it coming within the legal community and have been getting prepared for it in the divorce community.”

Some of the transition was unintentional and rooted in the 1970s when state law eliminated gender preference in divorces.

“Up until then, only women could get alimony,” Rice said. “There was a tender years doctrine which said that if a child was under a certain age, it was presumed the child would go with the mother. We determined in Tennessee that gender bias was unconstitutional.”

But same-sex marriage was out of the question for another 40 years or so, even though the stage was set.

“Once you make the divorce law gender-neutral, you take a lot of the potential problem out of the mix,” Rice added. “That really clearly, unintentionally was a wise move in that it enabled us to accommodate this change without a whole lot of problems.”

Memphis divorce attorneys say the U.S. Supreme Court's June 26 ruling legalizing same-sex marriage in all states may bring some hiccups but won't require a major transition within the legal community.

(Austin Anthony/Daily News via AP)

Mason was already handling same-sex relationship breakups, as many family law practices have for quite some time.

“So if you had a couple that was living together and bought a house together, we had to get the house divided,” Mason said. “You have the same problem once you buy a house and break up that a marrying and divorcing couple have. So in a sense we’ve been dealing with this for a long time, but just not the magic word of ‘divorce.’”

But there were the hoops of legal arrangements to do what marriage does automatically in terms of property and its transfer.

“At the end of the day, the real big victory for marriage in a practical sense is it is health insurance when you otherwise couldn’t get health insurance for a domestic partner and taxation – be able to do married-filing-jointly returns, which saves you a bunch of money,” he added. “And you can transfer wealth between married partners that you can’t do otherwise.”

Divorce in Tennessee for a same-sex couple married in a state that had legalized same-sex marriage before the Supreme Court ruling was a “very difficult problem,” Mason said.

“For the couples that moved to Tennessee and wanted to get a divorce, arguably there was no state with jurisdiction to handle it because they lived here,” he said. “They have to have subject matter jurisdiction and personal jurisdiction.”

Other states that had legalized same-sex marriage before the Supreme Court ruled are already exploring some legal frontiers that Mason said could become big issues in Tennessee.

Among them is assisted reproductive technology.

“It is a big deal, dealing with same-sex couples who are going to need to go get eggs, sperm,” he said. “Many of the states that already had same-sex marriages have gone ahead and adopted specific rules for dealing with custody and who can do what with surrogacy contracts. The Tennessee Supreme Court recently said, ‘We’ll accept surrogacy contracts.’ But they are essentially begging the Tennessee Legislature to tell them what to do with them.”

Rice says there may be a rise in prenuptial agreements, but a rise had already begun before the Supreme Court ruled.

“It’s kind of like marriage ain’t what it used to be. But in some ways it still is,” he said. “It’s still two people hoping to live forever in love, and I get the sad-angry part of it where that plan has failed. Whether you’re gay, straight or anything else, if that’s your plan and it fails, it hurts. When you create this legal partnership called marriage, there are issues in taking it apart sometimes that become very difficult even with the best of intentions.”

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