A Lesbian Couple's Messy Split Shows How US Divorce Law Has Completely Changed

Editor’s note: This post was excerpted from celebrity lawyer Laura Wasser’s new book on divorce, with permission from its publisher St. Martin’s Press.
What is different from a generation ago? Family law, the body of laws governing domestic relations, has undergone a profound and dramatic change, propelled by and reflecting equally profound and dramatic changes in the social reality of relationships.

A case I recently handled sums up what I mean: We’ll call them Melissa and Jennifer. They had been registered domestic partners under California law for well more than a decade. They had two children, a son and a daughter born two years apart, both now in school. The women had contrived a somewhat elaborate formula for conceiving the kids. To ensure that the children would have the same “father,” they used a single sperm donor for both pregnancies.

But then they went a step further. Melissa contributed the egg that would become their son, but after fertilization, it was placed for gestation into Jennifer’s uterus. Two years later, it was the other way around: Jennifer’s egg, fertilised by the sperm donor, went into Melissa’s uterus, and it was Melissa who gave birth to their daughter. If the formula seemed a bit of a reach — if it seemed to some that the couple was using it to make a “statement” — it was nevertheless a way for both women to experience pregnancy and childbirth and to make the two children truly the offspring of them both.

In any event, it was their choice, their uteri, and their family.

And when their relationship unravelled, as relationships can, and the couple decided to separate, a similarly well planned and lovingly thought out process governed the issues of custody and child care. On those subjects, the two women were in fairly harmonious agreement.

Other issues proved thornier, however — namely, money. As is typical in many states that recognise domestic partnerships, the money earned by Melissa during the course of the partnership was to be equally divided in the event of a separation. But since federal law at the time did not as yet recognise same-sex marriage or its joint-property provisions, she could end up having to pay federal gift taxes on the amount she was giving to Jennifer.

At the going rate at the time, that would mean she would be almost doubling her property award — which Melissa did not find acceptable. Her only out would be to pay a lower lump-sum payment, which was not acceptable to Jennifer. So the case went to court.

The judge hearing the case was an older man — old enough, in fact, to be the grandfather of the couple’s children, and how those children came into the world seemed to transfix the judge’s mind to the point that it became a sticking-point in the proceeding. Befuddled by the formula the women had devised, hung up on the lengths to which they had gone to ensure their kids’ origins, fascinated and at the same time repelled by a situation utterly foreign to his experience, he simply could not get past what he persisted in calling the couple’s “lifestyle.”

His emphasis on this issue was irrelevant and wide of the mark, as both lawyers agreed, and the judge’s insistence on raising it was both time-consuming and offensive. It was Melissa who first hit the bursting-point, proposing to Jennifer that the two take their fate out of the hands of a guy who struck her as very much a caricature of the quirky judges on “The Good Wife.” He simply could not get his head around who they were as people and what they had at stake.

Melissa and Jennifer were not comfortable with this person making decisions that would affect

their lives — lives he clearly did not understand. Instead, the couple agreed to go to mediation to

settle the issue on their own. And that’s exactly what happened.

To me, this case seemed to exemplify the disconnect between outmoded perceptions and current reality when it comes to relationships and their dissolution. To oversimplify a bit: On one side was the generation the judge embodied, still clinging to the idea that “family” means father, mother, two kids, refrigerator, and split-level — a template that was never as pervasive as claimed but that served as a kind of Madison Avenue standard for many years.

On the other side was a family configuration that shattered that notion noisily, and then had the temerity to break up and seek resolution in the law, which, by the time the 20-first century rolled around, in fact protected the new configuration.

Reprinted with permission from St. Martin’s Press. Copyright © 2013 by Laura A. Wasser.

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