Same-sex union test: alimony

Ron Garber knew his former wife was living with another woman -- and had taken her last name -- when he agreed to pay her $1,250 a month in alimony.

What he didn’t know was that the two women had registered with the state as domestic partners under a law that was supposed to mirror marriage law, Garber said.

State marriage laws say that alimony ends when the former spouse remarries, and Garber reasons he should be off the hook, given that domestic partnership is akin to marriage. But an Orange County judge has decided that registered partnership is cohabitation, not marriage, and that Garber must pay.

“This is not about gay or lesbian,” Garber said. “This is about the law being fair.”

The case, which Garber intends to appeal, highlights gaps between the legal status of domestic partners and of married couples, an issue the California Supreme Court is considering as it ponders whether to legalize same-sex marriage.

Proponents of same-sex marriage typically argue that gay couples will not have the full rights of heterosexuals until they too can marry. The Orange County case, however, shows how heterosexuals can be the collateral damage of the lesser legal status of domestic partnership.

If spousal support does not end with domestic partnership, “heterosexual men are the ones whose ox is being gored more often than not,” said San Francisco family law attorney Diana Richmond.

Lawyers in favor of same-sex marriage are watching the Orange County alimony case and say they will cite it to the state high court as an argument for uniting gay and heterosexual couples under one system: marriage.

Therese Stewart, San Francisco’s chief deputy city attorney, said the alimony ruling and other gaps in the domestic partnership law “highlight the irrationality of having a separate, unequal scheme” for same-sex partners.

Domestic partnership law also may have failed to replicate marriage in disputes involving property taxes, health coverage and, when same-sex couples move outside California, even parentage, attorneys say.

In the Orange County case, lawyers on both sides have filed proposed written rulings that would say domestic partnership is “not the equivalent of marriage. It is the functional equivalent of cohabitation.”

Orange County Superior Court Judge Michael Naughton suggested that he shared that view in ruling from the bench for the former wife, both lawyers said. Court minutes show that he has written a legal decision, but it is not yet available.

Garber, 51, said he favors same-sex marriage and has no issues about his former wife’s decision to register with another woman. He said that he agreed to pay alimony for five years to his wife of 18 years but that he would not have signed the agreement had she disclosed that she had become a domestic spouse a few months earlier.

State marriage laws say that spousal support ends when the person receiving it dies or remarries, unless otherwise specified in an agreement.

“If he had signed that agreement under the same factual scenario -- except marriage, not domestic partnership -- his agreement to pay spousal support would be null and void,” said William M. Hulsy, Garber’s lawyer.

Edwin Fahlen, who is representing Garber’s former wife, Melinda Kirkwood, said the agreement was binding, regardless of whether his client was registered as a domestic partner or even married. Both sides agreed the pact could not be modified, and Garber waived his right to investigate the nature of the Kirkwoods’ relationship, the lawyer said.

Melinda Kirkwood, 44, said the divorce was amicable until Garber’s new wife became involved. Kirkwood referred other questions to her partner, Kristin Kirkwood.

Kristin Kirkwood said she was uncertain whether Garber knew of the domestic partnership before signing the spousal support agreement. But “he has known about our relationship since three months after she left,” Kirkwood said.

Garber and his former wife owned and managed a real estate company and had two children, now 19 and 17.

“Basically, all he did was work,” Kristin Kirkwood said. “It was her decision to leave. He begged her to come back.”

She said Garber signed a spousal support agreement without bothering to verify that his former wife was a domestic partner because the agreement benefited him overall.

Jennifer Pizer, senior counsel for Lambda Legal, a gay rights group, said the Orange County case, if upheld on the grounds that partnership is not marriage, will underscore that the law does not provide equal treatment for domestic partners.

“It is better treatment if she can have her domestic partner and alimony too,” Pizer said.

A Court of Appeal last year upheld the state’s ban on same-sex marriage, citing the state’s domestic partners law and ruling that it was up to the Legislature to decide whether gays could wed.

The state attorney general’s office has argued that same-sex marriage is not needed because gays already enjoy the rights of marriage under the domestic partners law.

In a sign that the state high court considers the issue highly relevant, the California Supreme Court recently asked lawyers on both sides to provide additional written arguments on the distinctions, if any, between marriage and domestic partnership.

Although the domestic partnership law was intended to extend the legal rights of married couples to same-sex partners, lower court judges are uncertain how to apply it because of conflicts with the marriage code, lawyers said.

Pizer cited the case of a man who thought he and his partner were registered, only to discover later he had no legal protection. The man and his partner had met with a lawyer and signed registration papers, which were notarized, Pizer said. But his partner, who had said he would mail the documents to the state, didn’t, Pizer said.

When the couple split, the man learned that he and his former partner had not been registered and therefore he was not entitled to the law’s protection. If the same factual case had involved a marriage that was not legalized because of a mistake or technicality, courts would view the couple as having been married anyway, Pizer said.

Another case moving through the courts will determine whether domestic partners may inherit property from their partners without facing higher taxes on it. So far, domestic partners, with the support of the attorney general’s office, have been given the same rights as married couples. The case is now on appeal.

Pizer said the domestic partner law also has failed to help partners who work for employers who self-insure. Many provide benefits for spouses but not for domestic partners.

Family law attorney Richmond said domestic partnership does not protect the children of same-sex couples if they move out of state.

“A child born to registered domestic partners is treated in California as a child of a marriage, entitled to support and all the benefits provided by the state,” Richmond said. “But if that couple, or one of them, or the child, moves to another state, that parentage might not be recognized at all. When I have clients in that situation, I urge them to go through adoption or do some judicial proceedings to declare there are two parents.”

The state has argued, however, that even if same-sex couples were permitted to marry in California, their unions might not be recognized elsewhere.

State lawyers in Atty. Gen. Jerry Brown’s office, who have been arguing that domestic partnership registration makes same-sex marriage unnecessary, declined to comment on the cases in which partnerships were given a lesser status than marriage.

Mathew Staver, founder of Liberty Counsel, a religious freedom legal group, contended that any gaps are “minimal.” California has the broadest domestic partnership law in the country, said Staver, who is representing a group opposed to same-sex marriage.

As for the alimony case, Staver said the judge would have “no choice” but to award spousal support because “under the laws of California, she is not in marital relations.”

“While on the surface it looks unfair, it is not unconstitutional,” Staver said.

maura.dolan@latimes.com