42 Pages Posted: 27 Jun 2011 Last revised: 19 Feb 2012
Date Written: 2011
Same-sex couples with marriages or civil unions living in states hostile to their relationships may lack access to any court procedures to declare them divorced, leaving them in indefinite legal limbo. This comment proposes and defends a new solution: divorces in the state of celebration of the marriage or civil union.
The difficulties that same-sex couples face in accessing divorce results from two factors. First, “hostile” states, such as Texas, refuse to recognize same-sex marriages, even for the limited purpose of dissolving them. Second, Supreme Court precedents suggest that domicile is a constitutional prerequisite for personal jurisdiction over a divorce action (the so-called "domicile rule"), thus largely preventing same-sex couples from traveling outside of their home states to obtain divorce decrees.
The existing literature on this topic has focused entirely on encouraging hostile states to recognize same-sex relationships, at least for the limited purpose of dissolving them. This comment contends that such a strategy is unlikely to provide a remedy in the foreseeable future. Instead, this comment suggests that each friendly state can allow same-sex couples who can obtain marriages there (the “state of celebration”) to return to obtain a divorce, even if neither spouse still resides there. This solution has already been legislatively adopted in civil union/domestic partnership statutes in California, Delaware, Illinois, and Oregon.
However, the domicile rule may cast serious doubt on the validity of any dissolutions granted in the state of celebration, because jurisdiction over these dissolutions would not be founded on domicile, but rather consent or contacts arising from the celebration. This comment suggests that a limited exception to the domicile rule for divorces performed in the state of celebration is consistent with constitutional constraints on personal jurisdiction -- at least when the couple’s domicile refuses to recognize their marriage. While states may once have had an interest in regulating the divorces of their citizens (interests which originally undergirded the domicile rule), such interests are not offended by the divorces at issue here. In particular, states flatly refusing to recognize same-sex marriages cannot simultaneously assert an interest in preventing same-sex couples from being divorced elsewhere, or in applying their own substantive law to govern out-of-state divorce actions.
Keywords: divorce jurisdiction, gay marriage, gay divorce, same-sex marriage, same-sex divorce, family law, marriage equality, civil unions, domicile rule, personal jurisdiction, Williams v. North Carolina
Suggested Citation: Suggested Citation
Tarasen, Nick, Untangling the Knot: Finding a Forum for Same-Sex Divorces in the State of Celebration (2011). University of Chicago Law Review, Vol. 78, p. 1585, 2011. Available at SSRN: https://ssrn.com/abstract=1872963