I have often complained about courts in non-recognition states that have refused to grant divorces to same-sex married couples. The problem arises when a lesbian or gay couple travels to a marriage-equality state and gets married, or if a couple that formerly lived in a marriage-equality state relocates to a hostile state, and then breaks up. I would hope expected that an anti-gay judge would be glad to grant a divorce, whatever his personal biases may be. However, this is not what has happened in various states such as Texas, Oklahoma, Rhode Island. In some of the rulings issued in the past few years, a few judges on their own have refused to grant divorces. In other situations, the judges were initially open to granting the divorce, but then an anti-gay group intervened and persuaded the judge (or the court of appeals) to deny the divorce petition.
In most of these cases the petitioners were not asking a judge to grant them any property or alimony based upon their marriage, since they’ve already settled those issues, or maybe the other partner wasn’t even showing up in court to contest the divorce. Instead, all they wanted was an order of dissolution. Some lawyers have proposed that the couple could simply sign a private settlement agreement and distribute their assets, but this could create problems down the road. Being legally married could come back to haunt them if either of them relocated back to a recognition state (or if their own state started recognizing same-sex marriages), or if either of them died before they got a divorce.
Not being able to get divorced also means you can’t get remarried, which can be a real problem if either partner needs health insurance, wants to have children, or simply wants to enjoy the emotional and spiritual dimensions of marriage with their new lover. Being married to someone you don’t live with can create problems with lenders, title companies, and insurance companies as well.
The legal origin of these problems stems from what is referred to as the “domicile” rule, which means couples ordinarily can only get divorced in the state in which they reside at the time of their break-up, regardless of where they lived when they got married. The purpose of this rule, which goes back more than a century, is to prevent nasty husbands (or wives) from evading the divorce rules of the state they live in, by simply hopping across the state line to get a divorce in another state. For example, if a husband in New York didn’t like the property rules imposed on him by the New York court, it would be unfair to his wife if he could simply drive a few miles away to a more lenient state and file for divorce there.
Some folks think these rules don’t make sense any more, in our mobile society, but for straight couples the rules don’t create any real problems. Sure, every once in a while it is unclear where the couple really lives, or where their primary residence is, and that can lead to disputes when the different states have different divorce rules. But the real problems are for the gay couples in non-recognition states. Few of us can afford to move to another state just to get a divorce – especially because funds are usually even tighter during a divorce. Some lawyers have even questioned whether the out-of-state divorce would be valid in the non-recognition state,if there was a problem with an ex-spouse or a creditor.
Fortunately, the California legislature has just passed a bill (which was signed into law on October 9th by Governor Jerry Brown) that resolves this problem, at least for those who got married here in 2008, before Proposition 8 was passed. It will also help those who may in the future get married in California, if and when Proposition 8 (which bans same-sex marriages) is repealed (by the voters) or ruled to be unconstitutional (by the federal courts). The bill is titled SB (Senate Bill) 651, and the full text can be found at: http://leginfo.ca.gov/pub/11-12/bill/sen/sb_0651-0700/sb_651_bill_20111009_chaptered.html
The new law will go into effect in January 2012. It provides that if a couple got married in California but live in a state that won’t grant them a divorce (which is presumed if the state doesn’t recognize their marriage), the California court will have jurisdiction to grant them a dissolution. The divorce case will be filed in the county where the couple got married, and the dissolution is supposed to be adjudicated “in accordance with California law.”
There’s are a few more features of the new law which aren’t about divorce, but are equally helpful. Currently a domestic partnership registration requires that the couple live together, whereas marriage doesn’t have that same requirement. This can be a serious problem for those in commuting relationships, and the new law removes this discriminatory restriction. The new law also allows for confidential domestic partnership registration, another “benefit” of marriage that was not included in prior versions of the domestic partnership registration system.
There is a lot that remains unresolved in this new legislation, especially just what it means to adjudicate a divorce in accordance with California law if the spouses are not residents. But for those who have been able to reach their own private settlement agreement, this will enable them at least to obtain a formal dissolution. And, while there is also some uncertainty on the details, chances are the dissolution will be honored in other states, even non-recognition states. This will allow the ex-spouses to enter into contracts as a formerly married person, and to be treated once again as an unmarried person.
It’s a long ways from full marriage recognition in every state, but at least the couples that married in California will now be free to get divorced, wherever they live!
Making It Legal 