Family Law

Same-Sex Divorce Poses its own Legal Hurdles

By ckramer

In Washington, D.C., where same-sex marriage was legalized several months ago, local attorney Lawrence Jacobs has a message for same-sex newlyweds: marriage may be legal now, but divorce may be a tougher challenge.

Five states and the District of Columbia have legalized same-sex marriage at this point, and the legal challenges of same-sex divorces are starting to emerge. According to an article from CNN, the legal complications often arise when same-sex married couples cross state lines to live in places that don?t recognize gay marriage or ban it outright.

Jacobs consults with gay couples who are thinking about getting married. He told CNN: ?be careful what you ask for.?

Across the country, cases are coming up that are forcing state governments to make a stand about same-sex divorce laws.

In Texas, the attorney general is attempting to resist a gay divorce that an Austin judge had already approved. That case involves a lesbian couple that in 2004 had married in Massachusetts, where same-sex marriage is legal.

The judge in the case determined that a Texas constitutional amendment saying that marriage was a union between a man and a woman violated the federal Equal Protection Act of the Constitution. Greg Abbott, the attorney general, appealed the decision, claiming that ?It would not provide the parties with finality and certainty they seek. It would subject them to the worry of protracted litigation, as well as years of legal and personal uncertainty.?

Angelique Naylor, one of the plaintiffs, disagreed, because the couple has a child and share a house. To get a divorce in Massachusetts, legally, they would have to move back to that state and spend a year establishing residence there.

In Pennsylvania, a judge turned down a petition for divorce filed by another lesbian couple that was married in Massachusetts.

Carole Kern, who was involved in the Pennsylvania case, expressed her frustration about the outcome. ?I?m still legally married,? she told CNN. ?If I want to marry again, I can?t.? Kern is originally from Pennsylvania, and she had gone to Massachusetts with her partner explicitly to get married there.

In Rhode Island, the top court disallowed gay divorce a few years ago.

There is also a middle ground for states in the same-sex marriage scenario.

In Maryland, for example, gay marriage is not legal. The state will, however, recognize same-sex marriages that are performed in states where they are legal. This according to a recent decision from the state?s attorney general. Some legal experts are predicting that this will enable Maryland to perform same-sex divorces.

In California, same-sex marriage was allowed for a time in 2008 before the law was repealed. Marriages performed during that time are still recognized by the state, and now there are gay marriage divorce cases period being seen in state courts.

The Constitution generally calls for states to recognize the laws of other states, and states do recognize heterosexual marriages from one to the next. In gay marriage cases, however, the rules vary more widely, and the landscape is less clear.

The problems at hand get at the heart of the gay marriage issue. If a state allows a same-sex married couple to divorce, for example, it would have to recognize the validity of the marriage.

Full post as published by The Divorce Blog on May 10, 2010 (boomark / email).