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The Effect of the Full Faith and Credit Clause - Exception to the Defense of Marriage Act

The article written by Joanna Grossman entitled: “Dissolving Unhappy Vermont Civil Unions: It’s Harder Than It Look,” is important to gay couples joined under the New Jersey Civil Union Act as they will face the same challenges as those in Vermont in legally dissolving their relationships.  The problem stems from the Full Faith and Credit Clause exception to Defense of Marriage Act, permitting states to elect whether or not to recognize gay marriage or civil unions performed in other states.  Thus, if a gay couple married or joined by civil union relocate outside of a state in which their relationship is recognized, it may be very difficult to have the union or marriage dissolved.  This is because a state that elects not to recognize the couple as married and/or has no provision for civil unions, and therefore can not dissolve the union or grant the couple a divorce.

Most states, including those that recognize civil unions and gay marriage have a minimum time frame that an individual must reside in that state in order for the state to acquire jurisdiction to grant that person a divorce.  Thus, if a gay couple joined by civil union or marriage relocates to a state that does not recognize their status want to get a divorce, in order to dissolve the union, at least one person must move to a state that recognizes the couple’s status and must remain in that state long enough to meet the jurisdiction requirements. 

Example: 

Angela and Anna are married in Massachusetts.  Because of Angela’s employment, the couple relocates her to Pennsylvania, a state that does not recognize their marriage.  After several years, the couple grows apart and Angela is unfaithful to Anna.  In order to obtain a divorce, Anna must move to a state that recognizes their marriage such that it may be dissolved.  She leaves Angela and moves to Collingswood, New Jersey, across the Delaware river from their home in Philadelphia, Pennsylvania.  After remaining in New Jersey for a minimum of 6 months, Anna can make application for divorce in New Jersey.  Before making such application, Anna should consult with her attorney regarding her rights pursuant to the New Jersey Civil Union Act, which includes equitable distribution of marital property, alimony and child support (should the couple have children).

Full post as published by New Jersey Law Blog on January 19, 2009 (boomark / email).