This is a watershed moment in gay rights. Same-sex marriage is now legal in six states plus Washington, D.C., and Canada. Look for New Jersey and Maryland to fall in line next. And a movement in California is afoot to get a same-sex-marriage initiative on the ballot in 2012. There are 12 more states with either domestic-partnership laws or civil unions on the books that recognize gay marriages performed in other states. And for the first time in our nation's history, a Gallup poll shows that more than 50 percent of Americans believe same-sex marriage should be a legal right; among 18-to-34-year-olds, that number jumps to 70 percent. In the first four months that same-sex marriage was legal in California, before the passage of Prop 8 overturned that decision, more than 16,000 same-sex couples wed. Gay marriage is the social topic of the moment, prompting Neil Patrick Harris to post this recent tweet: "Dear media: Just because David and I will soon be able to marry in NY, doesn't mean we are actively planning a wedding. Cart before horse."
Perhaps the prospective Mr. and Mr. Doogie Howser are wise to wait until the laws are sorted out. Zupcofska handled a case where two men married in Boston and retired to Florida, only to see their marriage crumble. Now they're stuck in a bizarre legal purgatory. "One of the men met a twink he liked more than his 60-something partner," Zupcofska explains, "and they want to get divorced. "Problem is, Florida doesn't recognize same-sex marriages from other states—one of these aging men will have to establish residency in a state that recognizes gay marriage.
Cautionary tales aside, the race to the altar is on. Brad Sears, the executive director of the Williams Institute at the UCLA School of Law, which tracks gay and LGBT demographics and legal trends, expects that half of the estimated 65,000 same-sex couples living together in New York will marry in the next three years, mirroring the rate seen in Massachusetts. Many of those unions won't last—the projected rate of gay divorce is 50 percent, on par with that of straight couples. "I was invited to three weddings the year gay marriage was legalized in Boston," Zupcofska says. "People feel, 'We can get married! Let's get married!' And they're not good candidates for marriage. I've heard people say, 'Our relationship wasn't going well and we'd been thinking of splitting up, but instead we got married.'" The most noteworthy example is that of Thomas Adkins and Wesley Nyberg—one of the first gay couples to wed in California, in 2008. They'd been together for 17 years when they tied the knot; they separated just 13 days after saying "I do."
These couples are likely unprepared for the resulting legal minefield. Ross D. Levi, executive director of the Empire State Pride Agenda and Foundation, which was instrumental in making same-sex marriage happen in New York, explains, "I'm not sure that same-sex couples have internalized the fact that now, if things don't work out, the state has something to say about it. It's not as simple as picking up your Lady Gaga albums and leaving." Although divorce wasn't mentioned as part of the gay-marriage media blitz, Levi welcomes the arrival of Zupcofska and his ilk, saying: "There's more of a market for florists now. There's more of a market for caterers. And there's more of a market for lawyers."
For all of the ways that same-sex marriage is similar to traditional marriage—and the idea of wealthy gays trading in their aging spouses for a hot Brazilian stallion hews closely to the time-honored tradition of a midlife crisis and trophy wife—it's still separate and unequal in the eyes of the U.S. government. The 1996 Defense of Marriage Act (DOMA) says that the Feds needn't recognize same-sex couples who are legally married in their home states. Fifteen years later, the cultural lines have become blurrier—even some Tea Partiers decry the law for the way it infringes on states' rights.
In February, President Obama said his administration would no longer defend the constitutionality of DOMA, but it remains on the books. And even if the act is repealed, 37 states have laws that define marriage as a union of one man and one woman. And each state is different. This means an ever-changing legal landscape awaits those entering into a gay marriage as well as those exiting one. Divorce is supposed to make life—for the state, for lawyers, for ex-spouses—easier. It's a system of laws. But thanks to DOMA and a lack of precedents, the tangle of custody issues, estate planning, and tax codes will only grow thornier—and as more gay couples wrestle with what it means to end a state-sanctioned union, the emotional fallout will be greater, too. More storybook gay marriages means more soap-opera divorces.
All of which is, of course, good news for Zupcofska, although he didn't set out to fashion himself into a pit-bull gay-divorce lawyer. He took his first gay-breakup case in the mid-eighties, long before gay marriage was a legal hope, much less a reality (to this day, Zupcofska's business includes a large number of straight divorces). That first client was a successful entrepreneur, and his boyfriend was what you might call his social arranger. "He stayed at home," Zupcofska says. "He ate bonbons." When the younger man was ready to split, he hired a lawyer and proposed a lavish severance package that amounted to half his boyfriend's assets—the half that any good wife would get in a divorce. Except that in the eyes of the court, these two men were no more than roommates. "Marriage gives incredible protections to the spouse without the money," Zupcofska says. "But this was not marriage. There is no such thing as quasi marriage. You are either married or you're not. And if you're not, don't look for those protections." Among the arguments that the young man put forth to prove just how much cash he deserved was the frequency with which the couple had sex. No dice. Zupcofska stood firm on behalf of his wealthy client. The young man did get a condo, a car, and a payout big enough to get him back on his feet, but nothing approaching half the older man's assets. "The court doesn't reward a spouse's sexual contributions," Zupcofska says. "That's clearly stated in case law."