Family Law

Same-Sex Divorce Confusion Spreading

By Erin Kelley

By: Gerri L. Elder

Less than 18 months ago, a Rhode Island court denied a divorce to a same-sex couple legally married in Massachusetts. The case was the first to test the treatment of legal same-sex marriages by divorce courts in states that didn’t recognize same-sex marriage.

Just a few years ago, Massachusetts was the only state that allowed for same-sex marriage, and the divorce case was an anomaly–the issue rarely arose.

Today the legal issues surrounding same-sex marriage and divorce are much more complex. The state of California first legalized same-sex marriage and then created a Constitutional prohibition, leaving couples married during the brief window of legality in a legal limbo.

Within the past few weeks, the number of states allowing for same-sex marriage doubled, from two to four, and others are considering similar measures. These legal marriages create a conundrum for divorce courts in other states, particularly in those states where sentiment runs strongly against same-sex marriage.

For a court to grant a divorce, it must first recognize that there is an existing marriage, and many judges and lawmakers are concerned about the legal precedent that would be set if a state court recognized same-sex partners as “married” for divorce purposes.

How states ultimately address this issue remains to be seen. Legislation could create a specific right of divorce for couples legally married in another state, though that marriage would not be recognized within the state.  Or a Constitutional challenge might resolve the issue nationally, if states were required to give full faith and credit to same-sex marriages performed in other states.

The one thing that is clear is that the conflict among state laws, combined with the high degree of mobility among Americans, means confusion for divorce courts in the near future.

Full post as published by The Divorce Blog on April 16, 2009 (boomark / email).