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Same-Sex Divorce Could Require Moving Out-Of-State

Clarkston Legal Aug. 20, 2013

When our SCOTUS recently struck-down the Clinton-era Defense of Marriage Act, and also held that California’s prohibition on same-sex marriage was unconstitutional, proponents of same-sex marriage understandably hailed the decisions as a victory. Now that the dust has began to settle in these seminal cases, some of the fall-out is going to affect the inevitable divorce proceedings arising from failed same-sex relationships.

The corollary to same-sex marriage, however, is same-sex divorce. In some cases, when a same-sex couple is married in one of the dozen jurisdictions that recognize same-sex marriage, then moves to a state that does not recognize such nuptials, difficulties arise when the relationship fails.

This is because when you are a same-sex couple, you cannot just get divorced in a state that does not recognize same-sex marriage. And most states that do recognize same-sex marriages require a minimum residency requirement from 6-months to a year. Sometimes, moving to another state simply to get a divorce is not a viable option.

Once a same-sex couple splits-up without a divorce certificate, remarriage becomes a legal impossibility. Bigamy is a crime in all states; you cannot be married to two persons at once.

This common problem highlights one of the major difficulties in the lag between states that recognize same-sex marriages and those that do not recognize such relationships. Although the federal government must recognize same-sex marriages for purposes of benefits and entitlement programs, it is state laws that control who is, and who is not, legally married.

Divorce, already a daunting prospect for both heterosexual and same-sex couples alike, is made more difficult without clear legal exit strategies. Today, Wyoming is the only state that does not recognize same-sex marriages, but will allow a legally married same-sex couple to get divorced.

A pair of same-sex divorce cases in Texas, where the Texas Attorney General is opposing such divorce proceedings, are grinding through that state’s appellate courts and could provide the opportunity for the SCOTUS to build on its ground-breaking decisions from last term.

But all that is a long-way off for same-sex couples whose relationships have failed. The bottom line is that same-sex marriages are not treated the same as traditional couples; it will likely take generations for that to occur.