Now that same sex marriage is legal in Massachusetts, divorce lawyers are eagerly waiting for a test case defining the length of marriage between same sex spouses. This is the issue: longer marriages result in greater financial rewards for non-monied spouses. We all know same sex couples could not marry legally until May 2004, but some couples have been together many years. What happens to those couples who marry and then divorce a year or two later? Will the court treat their premarital relationship like a marriage? That would be sensible, but a dangerous precedent for heterosexuals.
The Massachusetts courts have steadfastly refused to treat premarital cohabitation between heterosexuals as a marriage, even after the couple marries and then divorces. The courts refuse to "tack on" the premarital years to lengthen the marriage. This is critical, because the longer the marriage, the more generous courts are when awarding alimony and dividing assets.
Is it fair to treat same sex couples in the same manner? After all, they were not legally permitted to marry until May 2004, whereas their heterosexual counterparts knowingly and deliberately chose not to marry.
Courts might be persuaded to "tack on" the premarital years to the years of marriage if a same sex partner proves the parties would have married before May 2004 if they had been granted the legal right to marry. The couple might have celebrated a their commitment to one another in a ceremony similar to a wedding; adopted a child together; purchased a home; secured medical insurance as domestic partners; named one another as beneficiaries of life insurance, wills and retirement accounts; named one another as holders of health care proxies; and generally held themselves out as a couple to friends, family and business associates.
Heterosexuals might be barred from making the same arguments because they could have married. If the courts change their position on heterosexual relationships, chaos will erupt. Obviously couples have relied upon the state of the law for generations. An abrupt change could shift the disposition of billions of dollars.
