Jan 8, 2007 4:03 pm US/Central
NYC Judge Finds Gay Marriage Case Void
NEW YORK (AP) ―
A New York City judge who said the Massachusetts marriage of one man to another was void has declared that their separation agreement is valid and legally enforceable under principles of contract law.
State Supreme Court Justice Phyllis Gangel-Jacob said New York state law denies spousal rights to two unmarried people living together but cohabitation does not prevent them from making an agreement under the rules of contract law.
The judge issued the decision, which was published Monday, in the divorce case of David Gonzalez and Steven Green, who married each other in Massachusetts on Feb. 14, 2005. Gonzalez was seeking a divorce, and Green wanted a ruling that they were never married.
The judge said the marriage was void under New York and Massachusetts law. New York does not recognize same-sex nuptials, and Massachusetts bars marriage between domestic partners domiciled in a state where the marriage would be void.
But, the judge said, unmarried people could make agreements "provided only that illicit sexual relations were not part of the consideration of the contract."
"The theory," the judge said, "is that while cohabitation without marriage does not give rise to the property and financial rights which normally attend the marital relation, neither does cohabitation disable the parties from making an agreement within the normal rules of contract law."
Green, a real estate investor, and Gonzalez, a student when they met and now a Manhattan lawyer, moved in together in Westchester County in 2001, the judge's decision said. In September 2005 they signed an agreement giving Gonzalez a one-time payment of $780,000 if they ended their relationship.
In January 2006, Gonzalez began his divorce action on the grounds of cruel and inhuman treatment. At the same time, Green sought a declaration that the marriage was void and asked that all the property he had given Gonzalez be returned.
The judge wrote that during the relationship Green had given Gonzalez expensive gifts, including two automobiles and a ski house. The judge said the agreement called for the house ski to be returned to Green if they broke up.
Green's lawyer, Yonatan Levoritz, said he will file an appeal next week to try to get his client's $780,000 back.
"If you were never married, why should you be paying spousal support," he said.
The judge rejected Green's argument that the agreement was the result of a mutual mistake, that both men thought they were married. She said Green, a sophisticated businessman, had to know the marriage was a nullity in both states.
Gonzalez's lawyer, Eric Wrubel, said that after 2006's New York state Court of Appeals ruling against gay marriage, the only issue was the agreement. He said his position "is that the finances of the relationship have been resolved."
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