Currently, same sex marriage is now legal in 19 states and the District of Columbia, and lawsuits are pending in every state that has not legalized same sex marriage in the wake of the U.S. Supreme Court decision in U.S. v. Windsor, which struck down part of the Defense of Marriage Act (DOMA). So, while more and more same sex wedded couples enjoy equal status and benefits under federal and state law as their heterosexual counterparts, same sex wedded couples seeking to uncouple have not been so fortunate.
As recounted in this article in the Washington Post, states that do not recognize same sex marriage will not entertain same sex divorce. A same sex couple legally married in a state or country that authorizes same sex marriage finds itself on the same discriminatory path as same sex couples wanting to marry in a state that does not allow such unions. For example, in Missouri, a legally married same sex couple cannot obtain a divorce – they can have the marriage annulled as void against public policy, but that denies them the same protections afforded to heterosexual couples seeking a divorce, including the ability to have their marital property recognized and divided. And if the couple has children together, Missouri will not allow the divorce to proceed at all.
In these cases, the same sex couple must return to the state where they married or move to a state where same sex marriage is legally recognized. Given the residency requirements of some states can range from one to two years, a same sex couple seeking to divorce has to remain together and relocate for a lengthy period of time – a burden we do not impose on heterosexual married couples. In an ironic twist, divorce for same sex couples residing in states that do not recognize their marriage puts them in the position of persons in the fault era of divorce, which purposely made divorce exceedingly difficult and the process unduly lengthy.
Some couples have bravely chosen to challenge the denial of their right to obtain a divorce, arguing that the right to marry logically includes the right to divorce, and if equal protection prohibits treating same sex couples differently than heterosexual couples after Windsor, a state should not have the right to preclude their ability to obtain a divorce.
The U.S. Supreme Court may decide to take up some of the same sex marriage cases this term and once and for all resolve the issue of whether a state may lawfully deny a same sex couple the right to marry. If, as many legal scholars believe, the Court takes one of these cases and finds a fundamental right to marry, no state will be able to deny legally married same sex couples the right to a divorce.
We will continue to keep you updated on the latest developments in our blog.
If you have any questions about same sex divorce, contact us – we can help.