Same-Sex Marriage Gets Easier but Same Sex Divorce Is Not So Easy

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On Monday, the U.S. Supreme Court decided to allow a lower court ruling that permits same-sex marriage in five states. The Court, however, did not offer any explanation or briefings for their support of the lower court’s ruling to permit same-sex marriages in Indiana, Oklahoma, Virginia, Wisconsin and Utah. As popular as gay marriage is becoming, statistics are revealing that, similar to conventional marriage, same-sex marriages sometimes fail and end in divorce. Although conventional marriage and divorce are relatively easy in the legal sense, same-sex marriages are not so easy to dissolve.

Bureaus of vital statistics and other public records show that same-sex couples who desired to tie the legal knot have had to resort to traveling to states that recognize such unions. Once legally married, the newlyweds returned to their home state to live as married spouses. However, for the unfortunate couples whose marriages fail and the decision to divorce is made, the process in many instances is working against them. For couples living in a state that does not recognize gay marriage, divorce is not an option in their home state because it does not recognize the marriage. Without a marriage, there can be no divorce, hence the problem.

Many states like New York State that recognize same-sex marriage have divorce laws with residency requirements. In order for a gay couple to divorce in New York State, they must satisfy that state’s residency requirement. For a divorce to be granted in New York State, the least stringent of all residency requirements is that one party must have lived in New York for a minimum of one year prior to filing. Many same-sex marriage states have similar residency requirements, thus creating extreme hardships for divorce-seeking same-sex couples who live in a no-gay-marriage state.

There are also problematic social issues confronting same-sex married couples who no longer share the same marital bliss that initially united them. Complicating the difficulties in getting a same-sex divorce is the fact that if the existing law prevents their divorce, then dating someone outside the marriage is still cheating, and marrying again without divorcing is still bigamy.

Spouses in these marriages seeking to get a divorce are left with only a few not so easy options; namely one or both parties must move to a state that recognizes their same-sex marriage and then satisfy that state’s residency requirement; attempt to get the marriage annulled; or lock horns in what would likely be a long and expensive legal battle.

For same-sex couples with children, the situation becomes exponentially more complex. Due to inadequate or non-existent legal precedent and the 10th Amendment’s constitutional guarantee for the 50 states and the District of Columbia to enact their own laws, deciding child custody for same-sex parents pursuing divorce can be even more heart-breaking than in conventional divorce. When both spouses are the biological parents of different children, the resulting breakup extends to the children and could create a situation where brothers and sisters may never see each other again.

Legal experts believe that the U.S. Supreme Court’s non-decision on Monday will pave the way and make it easier for the remaining 20 states to legalize same-sex marriage. However, published reports on the subject also point out that the legalization of same-sex marriage creates an entirely new set of problems making the process of getting divorced not so easy.

By Mark Politi

NY Times
NY Mag
ABC News
USA Today
Huffington Post
Photo Credit: Courtesy of Bart Vis

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