[author: Aaron Kase]
As marriage equality spreads across the nation in fits and starts, LGBT couples are slowly gaining access to the rights and privileges their straight counterparts enjoy, including divorce. But how can spouses get a divorce if they reside in a state that doesn’t recognize their marriage to begin with?
Maryland will grant LGBT divorces, but other states without gay marriage won’t
Repeal of Defense of Marriage Act wouldn’t resolve recognition problem
LGBT spouses living in states that don’t recognize gay marriage left in legal limbo
Bloom Off the Rose
When the honeymoon is over and it’s time to call it quits, married LGBT couples might find they have their hands tied if they don’t currently live in a state that allows gay marriage. At issue: If a state doesn’t recognize their marriage in the first place, it’s unlikely to grant a divorce, causing all kinds of complications, especially if there are kids involved and assets to be divided.
“With gay marriage of course you get gay divorce,” says Kenneth Altshuler, president of the American Academy of Matrimonial Lawyers. “One of the funny things we often hear is, ‘Why shouldn’t gay couples suffer as much as heterosexuals?’”
Some 50 percent of marriages in the United States end in divorce. LGBT marriage is too new to provide reliable statistics about the long-term divorce rate, but there’s no reason to suppose it will be particularly different from that of straight couples. Famously, Julie and Hillary Goodridge, who were married in Massachusetts in 2004 in the nation’s first legal LGBT wedding, filed for divorce in 2009.
For gay married couples who live in one of the six states plus D.C. that allow LGBT marriage, a divorce would proceed just like that of a straight couple: Lawyer up and start negotiating a settlement. Things get more complicated for couples who don’t live in a state allowing LGBT marriage, either because they have moved since their marriage or traveled for their wedding to take advantage of more progressive marriage laws.
“If I go to court representing a gay or lesbian partner saying, ‘We want to get a divorce,’ the court would say, ‘Wait a minute, we don’t recognize the marriage as valid. How can we give you a divorce?’” Altshuler explains. “You have a state like North Carolina that’s reaffirmed its constitutional ban [on gay marriage in a vote earlier this month], you think there’s any chance North Carolina will give a divorce?”
Maryland is the exception. The Maryland Supreme Court ruled earlier this month that the state would divorce gay couples legally married in other states, even though Maryland doesn’t yet sanction LGBT marriages itself. (It should by next year, barring a referendum challenge.)
Making matters more complicated, couples generally can’t simply travel to an LGBT-friendly state to get a divorce like they can to be married. States usually require proof of residency before they will grant a divorce. In effect, barring extraordinary efforts like actually packing up and moving house, feuding gay spouses trying to end their union might be out of luck. “Your options are you either move to a state until you establish jurisdictional grounds for that state to divorce you, or you can’t get divorced,” Altshuler says.
The Twilight Zone
Thanks to the 1996 Defense of Marriage Act (DOMA), one thing gay couples can’t access, even in states allowing gay marriage, is federal marriage privileges like the ability to file a joint tax return or share social security benefits. However, changes could be coming: The Obama administration has already announced that it won’t defend DOMA in court, and a court challenge could indeed be on the way after two California judges ruled the act unconstitutional.
DOMA could soon fall by law, as well as by judicial decision. AAML recently announced its support for the Respect for Marriage Act, which would repeal the DOMA and grant federal benefits to LGBT couples who have been married in a state that sanctions gay marriage. Unfortunately, even the repeal of DOMA wouldn’t force states to honor marriages and grant divorces, leaving separated spouses in a non-LGBT-friendly state in legal limbo.
“We’re not going to have 50 states recognize gay marriage. We have to have states recognize that if you get married somewhere else, they have to divorce you,” says Altshuler. “You’re going to have some states that are not going to agree with me on this. Therefore gay couples are really in the twilight zone.”
“Anytime there’s those inconsistencies in the law, it’s not good,” the attorney says. “It’s good for lawyers, because we can have new areas of litigation, but it’s really not good for the people.”