Same Sex Couples Denied Divorce

Same sex couples have struggled for equal rights as any other couple: the right to marry.  No matter what side you sit on this issue has become central to culture and politics today.  However, as some states are beginning to legalize the right for same-sex couples to marry there is a new struggle on the horizon: the right to divorce.

Same-sex couples can currently marry in six states and the District of Columbia, and there’s no residency requirement to marry. That means that couples who live outside of those states can just pop in for a day to get married and then go home. There are also five states that allow civil unions.

But, like any other couple things may arise that breaks down the marriage between the two parties and should the couple want a divorce things can get very tricky.

It all revolves around jurisdiction.  The state in which the couple is a resident of and has been living as a married home has jurisdiction over all family law matters which may arise.  Should that state not be one of the states which permits such unions than the state doesn’t recognize the marriage and the couple cannot get divorced.  This means that same-sex couples could be finding themselves stuck married, or having to move to a state which recognizes their marriage, establish residency (which can take six months to two years), and then go through the potentially lengthy process of divorce.

Same-sex couple Jessica Port and Virginia Anne Cowan found themselves in this confusing predicament themselves.  They had taken a vacation from their home in Washington D.C. to a San Francisco courthouse in 2008 to get married, since California had recently begun to allow same-sex marriages.

“We were just like every other couple, we really thought that this was it,” said Port, 30, who works as a counselor at a special education school. “We had nothing to worry about. We were just focused on marriage and future.”

When the marriage fell apart and the couple sought divorce a Maryland judge ruled in 2010 that the state’s constitution could not recognize their divorce, and denied their filing. They were both Maryland residents when they sought to dissolve their marriage, and Maryland was not a state that recognizes same-sex marriage.

It’s a predicament that lawyers such as Deborah Wald, of Wald & Thorndal P.C. in San Francisco, call being “wed-locked.” Wald is head of the National Family Law Advisory Council for the National Center for Lesbian Rights, which represented Port. “We’re trying to help people sort out: Am I married or aren’t I? Where can I get divorced?” Wald said. “These are all issues that do not come up for different sexed couples at all.”

You might think that, if you live in a state that doesn’t recognize your marriage, there’s no need for a formal divorce.

But it becomes important because, if one spouse gives birth to a child in the state of the marriage, the other spouse is presumed to be a parent under the law. It also means that neither spouse can marry or enter into a civil union with a new partner, or else they would be opening themselves to bigamy charges.

“This has very significant emotional consequences,” Sommer said. “Divorce is not only a legal termination of a relationship, but also gives a certain amount of closure.”

While some states are rapidly trying to update their laws and practices for dealing with same-sex marriages it remains a hazy state.  People are being denied, and others are looking for creative ways or alternatives to seek a way out.