What Does the Legalization of Same-Sex Marriage Mean for Divorce?
July 01, 2011
Topic: Same-Sex Marriage and Divorce
Effective July 24, 2011, New York will join the small but growing list of states that explicitly recognize and permit same-sex marriages. Many lawmakers and members of the general public remain opposed to same-sex marriage, but New York's decision suggests that wider acceptance may be on the horizon.
Within any random sample of couples a certain percentage will choose to part ways. This is a fact. And, as we previously argued on this blog, it is a significant reason in support of the legalization of same-sex marriage and, as a consequence, divorce. When an unmarried same-sex couple separates there are ways to divide their assets, debts, and children. These available legal tools are blunt - like using a hacksaw instead of a scalpel to perform a delicate surgery. They are clunky, inefficient, expensive, frequently unfair, and sometimes unworkable. Generally speaking they do get the job done, but the process is invariably much more complex than it could be were all issues addressed in one action, before one judge, in the divorce court.
But, the continued existence of the federal Defense of Marriage Act and the hodgepodge of state laws on same-sex marriage will give rise to a largely untested and perhaps largely unanticipated issue in terms of same-sex divorce.
Say a same-sex couple is married in New York and then later seeks to divorce in New York, or in another state that recognizes the union. This scenario should play out no differently from any heterosexual couple seeking to divorce.
But what if the couple marries in New York and then moves to Ohio, or to any other state where same-sex unions are not recognized? The Ohio court is very likely to find that it has no jurisdiction to grant a divorce because, under Ohio law, the couple is not actually married.
So, what is the couple to do? Each state sets its own jurisdictional requirements for divorces, which frequently mandate the would-be divorcees live in the state for several months prior to filing. The couple's options then become limited to a physical move to a state that will divorce them, or a separation without a divorce that neither provides any legal mechanism to divide property or determine children's issues, nor permits any subsequent marriage. Neither option is very palatable.
It remains to be seen what future changes may be made in this area of Domestic Relations Law, both in light of and in spite of the actions of New York's legislature. Changes in the law generally lag behind, often by a considerable period of time, changes in social norms and public policy, and the full impact of having vastly divergent laws as to what types of unions are recognized from one state to the next is not yet clear. But, it is clear that, as more and more same-sex couples are able to legally marry, more and more courts will be called upon to determine the proper jurisdiction to divorce them. For same-sex couples, this is an area of consideration when planning your lives together. For state governments that have so far managed to avoid the same-sex marriage debate, this is a public policy question that may soon require an answer.
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