Recognizing Gay Divorce Equality

Few options for law-based asset distribution are available in states that that do not recognize same-sex marriage and cannot perform gay divorce or in states lacking civil-union laws.

| January 2014

Keeping It Civil by Margaret Klaw (Algonquin Books of Chapel Hill, 2013) offers a rare inside look at how a lawyer negotiates family law cases with opposing counsel, prepares witnesses for testimony, sifts through legal precedents to develop courtroom strategy, presents arguments to the judge, and handles clients. Klaw brings a deeper understanding of the way cultural attitudes about sex, money, women, and relationships influence the law—and vice versa. In the following section from “Divorce Equality,” raises gay divorce issues across America—from states that do not recognize gay marriage and thus do not perform same-sex divorce, to states that do not operate with civil-union laws—and how assets are distributed between a couple when the law lacks protocol.

Gay Divorce Equality

The other day, a woman who wants a divorce called me. Which initially sounded fine, since that’s what I do. But upon further discussion, it turned out not to be fine. It turned out that I can’t get her divorced, and neither can anyone else. She’s stuck in a marriage that she and her spouse both want to end, with no feasible way out.

Sound like the eighteenth century? Or Saudi Arabia, perhaps? To the contrary, this woman suffers from a thor­oughly modern problem. The problem is that her spouse is a wife, not a husband. This woman married her partner in Vermont—picture the quaint inn, the rolling green hills dotted with black-and-white cows, the wedding package so appealing to same-sex couples in that most progressive state of all—and after the wedding, they packed up and drove back home to Philly. Therein lies the problem. Pennsylva­nia does not recognize their marriage as valid, thanks to our state’s version of the federal Defense of Marriage Act. Not only does this law, passed by a group of homophobic legislators in Harrisburg back in 1996, prohibit same-sex marriage here, it also provides that such a marriage entered into in another state is “void in this Commonwealth.” And if Pennsylvania doesn’t recognize you as being married in the first place, its courts have no authority to divorce you.

You’d think I would just tell my would-be client to go back to Vermont to get divorced. But she can’t. Because although Vermont welcomes nonresidents into the state to marry, the opposite is true when it comes to divorce: You have to live there. And this is not unique to Vermont; it’s the case across the country. In 2012, there is no state that re­quires residency as a prerequisite for a marriage license. You can drive to Vegas from anywhere at all and get married in the Elvis Chapel. Which is why gay and lesbian couples have flooded into Vermont and Massachusetts and New Hampshire and the rest of the states where they can legally marry—for the weekend, that is. Like Vermont, however, all states require that at least one spouse be a resident in order to file for divorce. While “residency” is defined differ­ently by different states, it always means that at least one of the spouses has to live there for some defined period of time (in the case of Vermont, for six months) before a divorce complaint can be filed. I assume that the rationale behind these divorce residency requirements is that states don’t want to tie up their court systems adjudicating divorces for people who don’t actually live (or pay taxes) there.

What’s my would-be client to do? She’s stuck, unless she or her wife a) move to a state that will recognize their marriage; and b) live there for long enough to satisfy the residency requirement so they can file for divorce. And if they don’t do this and one of them wants to marry some­one else? She can’t. Because she’s still married. The irony is overwhelming. Gay people are fighting so hard for marriage equality, and now, when some of those marriages don’t work out (what a surprise; they’re no different from straight people!), they also need to fight for the right to divorce.

So my Vermont-married, would-be client, and all those in similar circumstances, have no access to the courts to get divorced. The related, and far more common, would-be cli­ent is the unmarried gay person whose long-term, marriage-­like relationship ends. Can he avail himself of the remedies available to married people under our divorce laws? Is she entitled to any assets or support from her ex?