Civil Rights

Same Sex Marriage and Divorce


It went down to the wire but New York passed a gay marriage law. This makes New York the sixth state to legalize same-sex marriage. It remains to be seen if this is the tipping point for gay rights nationwide.

Almost immediately afterward, seven gay couples announced they would sue the state of New Jersey for full recognition of marital rights. New Jersey has a civil unions law for same-sex unions. But the couples argue the law has failed to confer the same rights as traditional marriage gives to married couples. 2011 promises to be a hot summer for the gay-marriage issue.


Men who legally married each other in Massachusetts can’t get a divorce in Texas. That’s the ruling made by a Texas court of appeals in Dallas.

Texas law limits marriage to couples of the opposite sex. The Texas court said it had no obligation to recognize a gay marriage performed in another state since it was contrary to Texas law. Because Texas courts don’t recognize gay marriage, they have no power to perform a gay divorce.

The court also ruled the Texas laws against same-sex marriage didn’t violate the federal constitution. The court found it reasonable for the state to limit marriage to a man and woman in order to provide the traditional environment for raising children.

Next door in Santa Fe, a judge ruled that two women can get a same-sex divorce in New Mexico. The women were married in 2004 after a county clerk briefly issued same-sex marriage licenses until the state attorney general told her to stop.

The judge rejected the argument that the marriage was void from the start because the county clerk lacked the authority to issue the same-sex marriage licenses. The judge decided that the county clerk might have made a mistake, but it was too late now to invalidate the clerk's actions.

Original Article

In a long-awaited and controversial 45-page opinion, the Attorney General (AG) of Maryland recently declared that Maryland recognizes same-sex marriages performed in other states. This means all state agencies must give the same benefits to married gay couples given to heterosexual couples.

This includes:

Does This Mean Same Sex Couples Can Get Married in Maryland?

The ruling doesn't allow same-sex couples to marry in Maryland. Currently, only five states and the District of Columbia allow same-sex marriages. However, same-sex couples can register as domestic partners and can get some, but not all, marriage rights and benefits.

What Effect Does the Attorney General's Ruling Have?

This was an opinion written by the state's AG. It's not the law, rather a guidance to judges and state agencies about how to act. The opinion recommends courts in Maryland respect the law of other states and recognize a same-sex marriage that legally occurred in another state.

The Reaction

Gay-rights activists were thrilled with this opinion, since it represents the most significant progress on their agenda this year. However, many organizations aren't so enthusiastic. The Maryland Catholic Conference criticized the opinion as against the institution of marriage.

Some lawmakers even threatened to pass laws barring the recognition of same-sex marriages performed in other states. One state delegate even threatened to impeach the AG.

The Legal Issues

Legally, states must give full faith and credit to the laws of other states. Another term for this is "comity." Under the US Constitution, states must recognize the laws of other states. This means that if other states permit same-sex marriages, Maryland must recognize them.

There are other types of marriages barred in Maryland that are nonetheless recognized in the state. For example, Maryland doesn't allow common-law marriages but will recognize and honor a common-law couple who moves into the state.

The Future

The AG's opinion is likely to be challenged in court when a lawsuit is filed. Courts can choose to take the guidance offered, unless legislation is passed that contradicts it.

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 divisionchild 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?
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