The Evolution of Same Sex Marriage and Some Unforeseen Complications

Since the Supreme Court rulings in United States v. Windsor and Hollingsworth v Perry, many states allow same-sex couples the freedom to marry. As of November 20, 2014, 35 states allow same-sex marriage.  (AK, AZ, CA, CO, CT, DE, HI, ID, IA, IL, IN, KS, ME, MD, MA, MN, MT, NC, NH, NJ, NM, NV, NY, OK, OR, PA, RI, SC and effective 11/20 , UT, VA, VT, WA, WV, WI, and WY, plus Washington, D.C. and St. Louis, Missouri)

In an additional 10 states, judges have issued rulings in favor of the freedom to marry, with many of these rulings now at the appellate level –  In AR, FL, KY, MO, MI, MS, and TX, judges have struck down marriage bans, and in LA, OH and TN, judges have issued more limited pro-marriage rulings. As more and more states recognize gay marriage, there are still less than half that are either in litigation or have an existing ban.

The problem is that many states still don’t recognize same-sex marriage.  When a same-sex couple moves to a state that does not recognize gay marriage, their marriage is still valid, however if they want a divorce, state law may not permit them to file.  If they attempt to obtain a divorce in the state in which they were married, they may not meet the multiple jurisdictional requirements for residency, the Uniform Interstate Foreign Support Act, the Uniform Child Custody Jurisdiction Act, personal jurisdiction, and in rem jurisdiction for division of property.

While there are ways that a same-sex couple can voluntarily agree to proceed with a divorce, if one spouse opposes the divorce, they can put up a road block to a resolution of the matter by opposing it on jurisdictional grounds.  California has attempted to partially resolve this issue by enacting a law that provides for same-sex married couples who were married in California but do not live in California and live in a state (or states) which will not dissolve a same-sex marriage, to file a dissolution of their same-sex marriage in California, regardless of the residency requirements. You must file for divorce in the same county you were married. It must be noted that if neither spouse lives in California, the court may not be able to adjudicate on other issues like property and debt, partner support, or children.

In summation, the sheer number of states that to date have enacted laws in favor of gay marriage is in itself a victory for same-sex couples.  The problems and issues that can arise in the context of divorce have not all been resolved but strides are being made.  For more information, contact Walzer Melcher LLP.

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