Document Type

Article

Publication Date

February 2014

Abstract

Same-sex marriage is now legal in seventeen states and sixteen countries. The question increasingly being asked is how these couples can divorce. For those who remain in their home state or in a marriage equality state, the divorce process should be the same as for any other marriage. The problem arises because people are transient; couples often relocate for jobs or family, or they initially traveled out of their home state for the marriage. “In a highly mobile society, state bans on same-sex marriage have in many cases made untying the knot far harder than tying it in the first place.” The legal gap between marriage and divorce exists because divorce jurisdiction requires the domicile of the petitioner while marriage does not. The domicile is the place one party resides with the intent to remain, typically six months to one year before filing for divorce. A few states—California, Delaware, District of Columbia, Minnesota and Vermont—now exempt same-sex marriage from these residency requirements and allow non-residents married in the state to return to divorce, if their home state refuses to dissolve the marriage. But for all other couples in the majority of states that do not recognize gay marriage, the only legal option seems to be the onerous requirement that one of the partners permanently relocate to a marriage equality state. Without the legal option to divorce, gay couples are in “legal limbo,” “locked into their marriage” “until death do them part.” They are prohibited from remarrying either gay or straight partners. They suffer emotional harm from forced personal relationships. They are exposed to continued obligations for insurance and debt. And newly-established federal recognition for lawful state same-sex marriages exposes them to continuing responsibility for federal taxes, social security, and other federal benefits. “It gives wedlocked a whole new meaning. They are trapped.” Attorneys and courts seeking to solve this divorce gap problem for same-sex marriages have some legal options. The gay divorce cases present the usual conflicts-of-law issues of a transient population. But there is no easy answer. This article proposes some possible solutions including return to the state of celebration, annulment, divorce through comity, or constitutional challenges to denials of same-sex divorce.

Publication Title

California Law Review Circuit

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