Same-Sex Divorce

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 for those who move out of these states to a non-recognition or prohibition state. This legal gap between marriage and divorce exists because divorce jurisdiction requires the domicile of a party while marriage does not. A few states (California, Delaware, DC, Minnesota and Vermont) exempt same-sex marriages from these residency requirements, allowing the couple to return to the state of marriage celebration to divorce. 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. Attorneys and courts seeking to solve this divorce gap problem for same-sex marriages have some legal options. Without divorce, gay couples are in legal limbo, locked into their marriage, prohibited from remarrying, suffering emotional harm, exposed to continued economic obligations, and incurring ongoing responsibility for federal tax and other benefits. This essay identifies potential strategies for litigants including limited recognition of the same-sex marriage under principles of comity, lex loci, and/or full, faith and credit; actions to void or annul the marriage; or declaring the Defense of Marriage Act and state DOMAs unconstitutional.

Keywords: divorce, same-sex marriage, conflicts, equal protection, Windsor

JEL Classification: K1