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Home / Expert Opinion / Matrimonial Matters: The flip side – when same-sex couples split

Matrimonial Matters: The flip side – when same-sex couples split

Sara Stout Ashcraft

In 2011, New York legalized same-sex marriage. Even before that happened, New York courts had held that New York same-sex couples married in a state permitting such marriages would be required to obtain a divorce to effectuate a legal split. Now seven U.S. jurisdictions have provided for same-sex marriage, and, logically, for the marriage to end in those states, the couples will need to get a divorce.

So far no problems are looming. However, what if the married couple then moves to a state that does not permit nor recognize same-sex marriage and their marriage falls apart? Can they get a divorce in the state they reside in? What if that state says that since it doesn’t recognize same-sex marriage, the parties are not entitled to a divorce? This is the problem facing some same-sex couples.

Andrew Feldstein of the Huffington Post refers to this situation as a “limping marriage.” As more states permit same-sex marriages — and even more are likely to pass legislation specifically barring them, the limping marriage is certain to become more common.

While most United States jurisdictions do not have any residency requirement to get married, almost every has a residency requirement in order to seek a divorce. Most of these jurisdictions require six months to one year of residency prior to commencing an action for divorce, although a few require less than six months, and two have no set residency requirement. However, even those with no set residency requirement do have restrictions on who can file for divorce. 

While it might seem like a boon to an unhappy partner in a same-sex marriage to be able to ditch the marriage without the expense and turmoil of a legal divorce, serious problems can occur.

For instance, suppose a same-sex couple marries in New York and then moves to Texas. After a year, one of the spouses decides that he cannot abide another day in the marriage, cleans out the bank accounts and safe deposit box, and moves out. Texas law holds that everything coming into a marriage is presumed to be community property.

However, the Texas constitution specifically bans same-sex marriage. What recourse does the abandoned spouse have — certainly not the divorce court. Even worse, what if the abandoned spouse cannot support himself? And worst of all, what about any children the parties have? The custody presumptions accorded married couples only applies if the parties are married.

Matrimonial practitioners can easily see where these married/not married differences among the states is headed. It is only a matter of time before we have clients who are caught up in some variation of the conundrum.

Some of our senior colleagues may remember the days of the Nevada “divorce ranches,” where a New Yorker desiring a divorce but lacking grounds would temporarily relocate to Nevada in order to meet the six-week residency requirement for a divorce. Over time, as states liberalized divorce laws and instituted no-fault provisions, the divorce ranches had to search for new clientele.

However, given the rise of same-sex divorce issues, the divorce “vacation” could again become a reality. Nevada’s constitution bans same-sex marriage, although same-sex domestic partnerships are permitted and some traditionally marital rights and protections are afforded these partnerships, so attempting a same-sex divorce would likely prove problematic there.

However, as states and entrepreneurs look for new sources of income, the economics of providing a divorce solution to same-sex couples from other locales may come up for consideration.

Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.

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