Gay and Lesbian Rights
BY Shulamit Shvartsman for Lawyers.comsm
What about Same-Sex Divorce?
Married same-sex couples need to be careful of where they move. First, because their marriage may not be recognized by every state. Second, if eventually couple wants to divorce, they're likely to face years of court actions and uncertainty. When same-sex couples move to states that explicitly ban or don't recognize gay marriage, they face a dilemma. There seem to be no rules for divorce.
Here are some examples of how these issues are handled. Currently, the Texas AG isn't permitting a gay divorce approved by a judge in Austin. In Pennsylvania, a judge denied a divorce to two women who were married in Massachusetts. Several years ago, Rhode Island's top court rejected the idea of allowing gay divorce. While California no longer allows same-sex marriage, courts are still hearing same-sex divorce cases from 2008 when the state did allow it.
Traditional marriages and divorces are recognized when a couple moves to different states. They aren't required to get remarried or re-divorced each time they relocate. But the rules vary for legally married gay couples, and there are many legal questions.
If the state doesn't recognize same-sex marriage, how can that state dissolve such a marriage? If a state doesn't permit same-sex marriage but grants a same-sex divorce, does this imply that it recognizes same-sex marriage?
Can't the Same-Sex Couple Simply Get a Divorce from the Same State That Married Them?
Not always. Many states have residency requirements before couples can file for divorce. If a couple lives in one state, it is very difficult for them to pick up and move to another state and stay there, sometimes for a year.
Why This Matters
The ability to get a divorce has an impact on many factors including property division, child visitation and the ability to enter new relationships and new marriages. As many states struggle with this issue, it has the potential to make it to the US Supreme Court. Hopefully that will give same-sex couples, lawyers and judges more guidance on this tricky issue.
Questions for Your Attorney
- The law on ending same-sex marriages or unions seems unclear. Can a couple plan for a possible end to the relationship by contract?
- Do laws on child custody and support apply to same-sex couples? If a couple breaks up, does the law view them as unmarried or never married parents?
- Do any federal laws apply here, such as for benefits or retirement plans when a same-sex couple part ways?