Same-Sex Divorce in a DoMA State

Family Court Review, Vol. 50, pp. 214-221, 2012

William Mitchell Legal Studies Research Paper

Posted: 12 May 2012 Last revised: 12 Mar 2013

Mary Patricia Byrn

William Mitchell College of Law

Morgan Holcomb

Hamline University - School of Law

Date Written: May 11, 2012

Abstract

When marriages fail, access to judicial divorce is crucial, and typically readily available. When faced with petitions for divorce from same-sex couples, however, courts in states with Defense of Marriage Acts (“DoMA states”) are flummoxed; indeed, more often than not, courts in DoMA states refuse access to divorce to same-sex couples. In this essay, we demonstrate that such refusals fail on three levels. First, the denial of access to divorce is bad policy because it traps couples in defunct relationships and leaves families in a sort of legal limbo — married in some jurisdictions, not married in others, and unable to achieve the finality of divorce. Second, it is constitutionally suspect because the denial of access to divorce violates principles of substantive due process and constitutes unconstitutional discrimination under established equal protection jurisprudence. Finally, the denial of same-sex divorce is premised on an unnecessarily narrow view of judicial power. State courts, even in DoMA states, have the power to hear and decide divorce petitions — same-sex or not. In addition, this essay articulates various paths to obtaining same-sex divorce in DoMA states.

Keywords: Defense of Marriage Act, DoMA, divorce, same-sex couples, same-sex marriage, marriage

Suggested Citation

Byrn, Mary Patricia and Holcomb, Morgan, Same-Sex Divorce in a DoMA State (May 11, 2012). Family Court Review, Vol. 50, pp. 214-221, 2012; William Mitchell Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=2056526

Mary Patricia Byrn (Contact Author)

William Mitchell College of Law ( email )

875 Summit Avenue
Saint Paul, MN 55105
United States
651-290-6478 (Phone)

Morgan Holcomb

Hamline University - School of Law ( email )

1536 Hewitt Avenue
Saint Paul, MN 55104-1237
United States

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