It seems same-sex marriage is all the talk these days – which states allow it, which states ban it. But what about same-sex divorce? Why is no one paying attention to the laws that surround the dissolution of a union?
Imagine the Following Hypothetical Story:
Jane and Jill wanted to get married. Their state didn’t allow same-sex marriages. So, they traveled to one of the USA’s nine states that did allow such a union. Since the state didn’t have a residency requirement, they were able to just pop in for a few days. After the honeymoon, the couple returned to their home and proceeded with life as usual.
Several years down the road, married life began to loose its luster. Both Jane and Jill wanted to end the marriage. Things just weren’t working out. However, their state didn’t acknowledge their union from the very beginning. Therefore, the state said there wasn’t anything to dissolve. Divorce wasn’t an option.
Do They Need a Divorce?
At this point, about the only option Jane and Jill have is to relocate to a state that allows same-sex marriages so they can get a same-sex divorce. While the law varies from state to state, most have a six month to two year residency requirement for divorce. Can you imagine?! “Honey, I don’t want to be in a marriage with you anymore, but let’s pack up all our earthly possessions, quit our jobs, sell our home, move across the country, and start a new life – even though we can’t stand the sight of each other. Don’t worry. This is just a temporary situation. After a few years, you’ll finally be rid of me.”
So, do Jane and Jill even need to worry about divorce? If their home state doesn’t see them as married, why do they need to be divorced?
If one spouse gives birth to a child, the law presumes the other spouse is the parent. Additionally, neither spouse can re-marry or enter into a civil union with a new partner without setting themselves up for bigamy charges. And what happens to their home, assets, and life insurance policies?
While many people are interested in the legal termination of their marriage, the emotional dissolution is sometimes just as valuable. People need closure. Divorce usually provides that.
What to Expect
Deborah Wald of the National Family Law Advisory Council for the National Center for Lesbian Rights says Jane and Jill are “wed-locked.” This precarious position is one no one wants to find themselves in.
If a couple is wed-locked, they can expect a difficult legal battle. For starters, the process is very confusing to nearly everyone involved. Therefore, there is the potential for lots of honest mistakes to happen. In the meantime, the situation will probably be very expensive to get sorted out.
If Jane and Jill want to get a divorce in their home state, a state that doesn’t recognize their union, they will have a difficult fight ahead of them. One such couple was recently able to get a divorce because they were able to prove the situation unconstitutional – they didn’t have a remedy for getting out of their marriage.
Other divorce lawyers push for nunc pro tunc (retroactive to an earlier date) judgments. Either way, same-sex divorce is very, very different from heterosexual divorce.
What’s the Difference?
As of now, there is no universal rule for same-sex divorce. Since it isn’t recognized on a federal level, retirement packages aren’t easily divided up. Other financial issues may arise, and tax ramifications are usually different for same-sex divorce too.
Child custody cases tend to be very ugly in same-sex divorce. The child is biologically related to one parent, but not the other. This can cause some serious problems, even if both parents raised the child since birth. Legal rights for non-related parents are tricky.
In a perfect world, a gay couple would have a prenuptial agreement. This is about the only way to navigate safely – with minimal drama – through the divorce process.
In addition to legal differences, same-sex marriages differ from heterosexual marriages on an emotional level too. A lot of divorced gay people feel a much larger sense of guilt. Since same-sex marriage advocates have fought so hard for their right to marry, the destruction of the marriage seems like a much bigger failure. Married same-sex couples often feel like role models for the gay community. While it certainly isn’t true, they feel their divorce is letting everyone down.
What Do You Think?
What are your thoughts on same-sex divorce? Should states offer an out to unhappy couples, even if they don’t offer same-sex marriage? Do you think gay couples should even worry about divorce if things like property and children aren’t involved? Let us know what you think!
Guest author Jessica Velasco works for a Clearwater divorce lawyer. Since Florida doesn’t allow same-sex marriage, she was recently approached by a wed-locked couple seeking a divorce.