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And that may be just the tip of the legal iceberg
for same-sex couples. It remains to be seen whether California will
recognize and extend the same family law protections to Vermont's
civil unions, Massachusetts' gay marriages or Canadian same-sex
marriages.
"What about a couple that gets married in California
but then moves to Ohio?" Hertz says. "Normally, one of the advantages
of marriage in this country is that, if you get married in one state,
it's recognized in every other state. Well, that's not the case
with Massachusetts' gay marriages or California's domestic partnerships.
We don't know if other states are going to recognize them."
Even stranger, you don't need to be a California resident to register
as a domestic partner in California; you can download
the form and mail it in with a $10 processing fee.
"I joke with my clients that, because they can't really get
married everywhere, they try to get half-married everywhere,"
says Hertz. "But if you register in California or Vermont and
you live in Missouri, how do you get divorced? You may not be able
to get divorced in California because you're not a resident, but
you may not be able to get divorced in Missouri because they may
not recognize the status. However, you may want to get divorced
because you don't want to be liable for the other person's debts."
To further complicate matters, financial companies,
from stock brokerages to banks and credit card companies, want both
signatures to open an account.
"In California, for example, I can't open up an investment
account as a married person without my spouse signing off because
there is equal management and control in California community property,"
says Hertz. "That means I can't unilaterally sell my house
or close my stock account, even if it's just in my name, because
the bank or lender or title company wants to know if it's community
property."
Hertz predicts the country will ultimately recognize same-sex unions
for one very compelling reason: It's too cumbersome not to.
"In a national economy, the notion that there are 10 different
kinds of marital statuses with uncertain portability is so unworkable
that I think we're going to end up legalizing gay marriage simply
because the complexity of this patchwork-quilt system will just
be unbearable and unworkable."
As for the seemingly endless permutations of community property
law, Clifford prefers to see the upside.
"God knows, it keeps domestic relations lawyers employed.
A friend of mine used to say that the California divorce law should
have been called the 'lawyer's relief act.'"
Jay MacDonald is a contributing editor based in
Mississippi.
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