Lesbian couple's marriage changes nothing about their ownership of previoiusly purchased property...and a thought about marital name changes

An otherwise unremarkable ruling from a New York trial court last month highlights a circumstance bound to impact many same-sex couples in the future. Jane Taylor and Diane Taylor (see my comment below about their names)bought a home as tenants in common in July 2008. A tenancy in common means each person owns her own share, the shares need not be equal, either owner can sell her share through a court action known as partition, and if one dies the other does not inherit the property.

They married in Connecticut a few months later, and before that they wrote a "pre-nup" agreeing that their separately owned property from before the marriage would remain separate and the home they bought would, if sold, result in each person getting what she put into the home with the profit divided equally.

When they split up last year, Jane filed a partition action. Diane tried to stop the action, claiming that division of the property could only take place as part of a divorce. She lost because the property was purchased before the marriage and therefore not a marital asset.

This last point is the one that matters. This couple jointly owned the home before their marriage. But what this case illustrates is that if one person buys a home and then later marries the home is not a marital asset. No matter how long the couple lives in the home, its value will not be divided upon divorce according to "equitable distribution" principles. Of course if the non-owning spouse put money into improving the value of the home there may be a property claim, and if there is a contract there may be a breach of contract claim, but those are very different from equitably dividing assets at divorce.

Given that same-sex couples are marrying now, often after having been together for many years, this could work a real hardship on the person whose name is not on the deed to the house. The rule applies equally to heterosexual couples, but since marriage has only recently become available to same-sex couples, many of those couples will have lived together for a long time before marrying.

This illustrates the arbitrariness of the rule that rigidly divides property into "marital" and "nonmarital" and allows division of only the former, yet that is the rule in the vast majority of states. Washington state is an exception. The courts there treat couples who live together without marrying the same as married couples when it comes to the accumulation and division of community property. I like that rule.

But there is another way to achieve a similar result for a couple who does, ultimately, marry. A few states look at all the property owned separately or together by the two spouses and allow divison of all of it according to equitable principles. This is called the "hotchpot" approach. The current version of the Uniform Marriage and Divorce Act contains this approach, but few states have adopted it. Most maintain a rigid distinction and do not allow a judge to allocate the pre-marital property of one spouse to the other.

We are seeing only the tip of the iceberg of divorces of same-sex couples, but I predict this issue will loom large. Even if some judges will be persuaded that they can divide the family home even if it is titled in the name of only one spouse and was purchased before they married, that will not help the couples who do not marry. For them, the rule in Washington state is the only fair answer, but I don't see the law moving in that direction.

Meanwhile, about their names. Each spouse has a "formerly known as" and a different name listed in the caption of the case. So it looks like they both changed their names to a common name at some point. I hope someone is studying whether there are distinct characteristics of same-sex couples who do this. The tradition of a wife assuming the name of her husband once served as a visible expression of her loss of identity in marriage. A couple who takes an entirely new name obviously is not making this statement, but is still saying something about their desire to be seen as a unit.

This issue surfaced in South Dakota in the last couple of months, with lesbians married in Iowa unable to use their marriage certificates as a basis for a name change on their drivers' licenses because the state does not recognize same-sex marriage. The ACLU represented a couple, Jessica Dybing and Andrea Jorgenson, denied the ability to get new licenses in their hyphenated name; in the other instance, one woman, Amy Muston, wanted to adopt the last name of her spouse, Ashley Stabe. The women were granted the name changes by a judge last month, in a routine name-change proceeding. Generally, a judge will grant any name change petition as long as the reason for the change is not fraudulent. Of course this still does not answer my question about why two women feel they need the same last name.