41 Pages Posted: 6 Aug 2011 Last revised: 5 Mar 2013
Date Written: August 1, 2011
For as long as marriage has existed in the United States, divorce has been its necessary opposite. So strong is the need for divorce that the Supreme Court has suggested it is a fundamental right, and every state in the country allows access to no-fault divorce. For opposite-sex couples, legally ending their marriage is possible as a matter of right. For married same-sex couples, however, state DoMAs (Defense of Marriage Acts) have been a stumbling block – preventing access to divorce in some states. Same-sex couples in numerous states are being told by attorneys and judges that they cannot terminate their legal marriage. In a word, these couples are wedlocked.
This article proceeds in three parts. Part I will address the question: “Who needs divorce?” The answer: Everyone who is in a legal marriage in which they no longer wish to remain a party. Part I of this article discusses the importance of divorce to married couples who no longer share their lives, and sets out the array of intractable issues that arise when a couple – whether opposite-sex or same-sex – is unable to end a marriage. Part II addresses the question: “Do courts have subject-matter jurisdiction over same-sex divorce?” The answer: Yes. In the vast majority of states, nothing has stripped state courts of general jurisdiction of the power to exercise subject-matter jurisdiction over a same-sex divorce. Part III addresses the question: “Can a court grant a same-sex divorce?” The answer: Yes. Again, the vast majority of state DoMAs neither explicitly nor implicitly prevents a court from granting a divorce to same-sex couples. Part IV takes on the question: “How can a same-sex couple get a divorce?” This Part explains how a court can grant a same-sex divorce by applying the residency state’s divorce statute, the divorce statute of the marrying state, or by granting equitable relief. Finally, Part V asks the question: “Are courts required to grant same-sex divorce?” The answer: Yes. Part V asserts that denying same-sex couples access to divorce violates due process and equal protection. These constitutional provisions require states to provide access to divorce to same-sex couples to prevent them from remaining wedlocked.
Keywords: same-sex marriage, divorce, separation, dissolution, DOMA, Defense of Marriage Act, D.O.M.A., fundamental rights
JEL Classification: J12, K00
Suggested Citation: Suggested Citation
Byrn, Mary Patricia and Holcomb, Morgan, Wedlocked (August 1, 2011). University of Miami Law Review, Vol. 67, p. 1, 2012; William Mitchell Legal Studies Research Paper No. 2011-04. Available at SSRN: https://ssrn.com/abstract=1905695