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Iowa judge causes stir in granting gay divorce

A judge in Sioux City, Iowa, has granted a divorce to two women legally united in Vermont, becoming one of the first judges outside that state to dissolve a civil union.


Judges in the rest of the country have tentatively tackled the thorny issue of how to dissolve Vermont civil unions in states that do not recognize legal partnerships for gay and lesbian couples -- but so far, most same-sex divorces have survived legal challenges.

In Massachusetts, where the state's highest court ruled last month that homosexual couples have the legal right to wed, analysts predict that married same-sex couples could face the same legal obstacles if they move away and wish to divorce.

In Iowa's Woodbury County District Court, Jeffrey A. Neary's decision to grant the lesbian couple a divorce was quickly criticized as judicial activism. But Neary, a recently appointed judge, said he wasn't trying to expand rights for same-sex couples.

"At least in my way of seeing it, I'm not changing state law here," he said in an interview. "I'm not recognizing marriages. I'm recognizing that Vermont has recognized this [union]."

Neary said he drew on legal principles of fairness when he allowed the divorce of two women, who had both agreed to the settlement before him and did not have any children.

But when the divorce became public, Neary was attacked by some state politicians. Iowa is one of 37 states that have adopted the Defense of Marriage Act, which restricts marriage to the union of one man and one woman.

"The judge was wrong," said state Senator Neal Schuerer, a Republican. "If judges want to flout the law like this, I can guarantee you we will move to recall them."

Neary said his decision has not yet been challenged in court.

Supporters of same-sex marriage, however, applauded Neary's decision, even as they recognized it might not set much of a precedent beyond the state's borders. Also, legal analysts said that if no one challenges Neary's decision, the same-sex divorce could set a precedent in Iowa.

"To me, it's an acknowledgment that a thoughtful judge would say, on reflection, why not?" said Elaine Epstein, a Boston lawyer who specializes in family law. "Whether or not gay marriage becomes a fact in Massachusetts, I just wouldn't be surprised if you would see judges allowing a divorce after a civil union."

Nancy Van Tine, head of the domestic relations department at the Boston law firm Burns & Levinson, suggested that Neary's decision would do what divorce law was intended to do: benefit the separating couple.

"One of the things that divorce does under those circumstances is it kind of gives closure and clarity," she said.

Neary's order was not the first time a judge has granted a dissolution of a civil union from Vermont. In Texas earlier this year, a judge agreed to grant a divorce to a couple who wanted to end a Vermont civil union.

But when the state attorney general intervened, the judge reversed his decision. In Connecticut, courts faced a similar problem, and a case filed by a Connecticut man to legally end his civil union was thrown out. After the state's highest court agreed to hear the case, the man died, and the issue became moot.

Lawyers see similar problems ahead if Massachusetts allows same-sex couples to wed. Last month, the Supreme Judicial Court ruled that banning gay and lesbian couples from marrying violates the equal protection and due process provisions of the Massachusetts Constitution.

Courts will eventually sort out whether gay marriages must be recognized in other states -- and if same-sex couples who marry in Massachusetts but move away can divorce in their new home states.

Neary said he signed the divorce agreement last month without realizing the couple who wished to break up were both women. It was "order hour" at Woodbury County District Court in Sioux City, when lawyers line up to ask judges to sign routine orders.

As Neary started to hand the papers back to Dennis Ringgenberg, the lawyer for one of the women, he looked at the names on the petition.

"I said, `Dennis, these are two women,' " Neary recalled. "He explained to me they were legally united in Vermont. They lived in Sioux City. They decided to go their separate ways and wanted to do it legally."

But Neary said even after he realized what he had done, he decided to allow the divorce to stand. The courts will probably continue to see couples who want to dissolve their civil unions, he said, and the cases may be more complex because the partners cannot agree or have children.

"We can't ignore it from a legal perspective," he said. "We have to figure out how to deal with it. If people have disputes, and they otherwise live here, then they should have access to the judicial system."

Neary was sworn in as a district judge in January.

Dissolving civil unions remains a problem for couples who do not live in Vermont. The state law allows couples who live beyond the state's borders to travel there to be united in a legal civil union. But since other states generally have not recognized civil unions, they have no provision to legally end the unions.

A majority of the 6,569 civil unions performed in Vermont since it became legal three years ago have united couples who don't live in the state. Just 933 of those unions were granted to Vermonters.

So far, 25 of those couples have dissolved their civil unions in Vermont, according to statistics updated yesterday. The unions can only be legally dissolved in Vermont if one partner has lived in the state for at least a year, and the other partner has lived there at least six months.

Kathleen Burge can be reached at Material from the Associated Press was used in this report.

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