The recognition of the right to marry in some states has been an immense step forward for same sex couples, but several jurisdictions that have not recognized that right are now facing another, related legal question: What happens when such marriages don’t work out and the couples want to divorce in their state?
If the couple seeks divorce in a jurisdiction that recognizes same sex marriage, there isn’t an issue as the law provides a framework just as it does for straight marriages. Problems arise, however, when a same sex couple was legally married in one of the states that allows such a union but then file for divorce in a state that doesn’t.
After all, same sex “conscious uncouplings” involve the same issues as straight marriages from dividing assets and debts to, in some instances, child custody and support. So what is a legally married same sex couple to do when they want to split up but don’t reside in a state that recognizes same sex marriage?
This is the dilemma faced by same sex couples around the country, including in Texas, where a district judge allowed a same sex divorce to continue only to see the appellate court halt the divorce and custody proceedings pending further appellate proceedings. Stay tuned!
The most obvious solution in such instances is for the couple to move to the state that granted their marriage (or another state that would recognize their divorce), but logistically that isn’t always possible. Advocates of same sex marriage, though, would argue that it also shouldn’t be necessary as it would be treating same sex married couples differently from straight married couples.
In any event, even if a divorce is recognized out of state, if the couple holds property within a state that doesn’t recognize same sex marriage, there is a serious question as to what would happen to that property, so it may not be as “easy” as picking up and getting a divorce elsewhere.
In addition to the proceedings in Texas, Kentucky and Mississippi also have right-to-divorce cases in progress, and at least one state has ruled that same sex couples have a right to divorce in the state even though, technically, their marriage isn’t legally recognized there. In 2011, the Wyoming Supreme Court granted a divorce to a same sex couple who had been married in Canada.
What do you think of the right to divorce? Should it be universal?