By October of 2013, Patrick Arbor had had enough. The former Chicago Board of Trade Chairman was ensnared in a nasty divorce battle with Antoinette Vigilante and after over a year of wrangling the end appeared to be in sight: the divorce was finalized on October 1. But the financial hits had not stopped, and the judge ordered Arbor to hand over 18 million dollars. Arbor had already cleared out bank accounts, moved money overseas, and even transferred title of his condominium and car to family members, all in an effort to thwart Vigilante’s lawyers from discovering his true net worth. But still, Arbor now stood to lose more than a third of his approximately $55 million net worth. So Arbor packed his bags and fled to Europe without paying, leaving behind several contempt of court orders subjecting him to arrest if he ever set foot in the Windy City again.
Unfortunately for Mr. Arbor, he was in a heterosexual marriage. For if Antoinette had been Anthony, it is very possible that he would not have had to trouble with passports, airplanes, and language lessons. Rather than flee to Europe, he may have been able to simply pack up and drive to a state that disallows both same-sex marriage and same-sex divorce.
Typically, the problems inherent in same-sex divorces across state lines aren’t malicious ones – they involve having to move back to the state that created the marriage to obtain jurisdiction, or generally much increased costs and time. These aren’t trivial issues, but they are solvable ones. But what would happen if a gay Patrick Arbor-type moved from, let’s say, New York, to a state unfriendly to same-sex marriage in the aftermath of a divorce filing?
A heterosexual spouse who sought to avoid such obligations by way of flight to another state would be unsuccessful for myriad reasons. First, there are several statutes, such as the Uniform Reciprocal Enforcement of Support Act, that most states have passed to prevent just such a scenario. Second, under the Full Faith and Credit clause of the United States constitution, states are generally bound to grant recognition to the legal decrees set down by other states, and this includes judgments of divorce. But in the case of same-sex marriage, these laws and principles fail to apply, as states need not accept the judgments of the courts of other states when those judgments conflict with the “strong public policy” of the second state. And in many states today, it is a matter of law that same-sex marriage conflicts with public policy.
A same-sex spouse would have little trouble obtaining a decree of divorce in New York. Even if a spouse fled with the money, a “default judgment” could be obtained by the spouse remaining in New York, provided he could show that his fleeing husband was given notice of the action – not a high bar. The problem would be in actually enforcing that judgment. Most of the states that currently ban same-sex marriage also refuse to recognize same-sex divorces (though there are exceptions). As such, a divorce decree rendered by a New York court could face severe difficulties in being recognized by the court of another state. In effect, the “flight-state” would provide a force field against same-sex divorce judgments, allowing the fleeing spouse to protect any assets he could transport into that state.
Admittedly, this is a problem that might come to an end very soon, as more states are forced to recognize gay marriages by the courts. But until that happens across the land, the law remains in a state of unease, and it only takes one embittered spouse paired with one creative lawyer to test the boundaries of the present same-sex marriage regime.
Jacqueline Newman joined Berkman Bottger Newman & Schein LLP in 1998 and is now the managing partner of the firm. Ms. Newman’s practice consists of litigation, collaborative law and mediation. She specializes in complex high net worth matrimonial cases and also in negotiating prenuptial agreements. Read more about Jacqueline Newman.