Surveying the Latest News on Same-Sex Divorce

The recent Texas Court of Appeals ruling is a setback for the San Antonio lesbian couple trying to get divorced.  As we’ve seen throughout the country, many couples got married even though they lived in states that didn’t recognize their marriage, not realizing the problems they would encounter if their relationship unraveled.  In most such situations, they can’t get divorced in their home state, since many state courts have taken the position that granting a divorce is form of recognition of the marriage.  However, they can’t get divorced in the states where they got married, since most states require you to be a resident in that state in order to get a divorce – to prevent spouses from escaping the divorce laws of their home state.  These couples are, in effect, “wed-locked,”

Several states have modified their marriage laws to allow for “non-domicile divorces,” which means you can get divorced there even if you aren’t a state resident, if you married in that state and live in a state that won’t grant you a divorce.  California is one of the states that now provides this option, both for state-registered domestic partners and married spouses.   But that law doesn’t help most such couples – and even if some of them could go to the state where they married to get divorced, that can create additional expense and legal problems, especially if they have children.

The San Antonio story is particularly painful, as one of the women is not considered a legal parent of the couple’s child under some readings of the law.  If their marriage is not recognized, she may not be honored as the child’s second legal parent, because she didn’t do a second-parent adoption of their child.

The moral of this story is clear: if you live in a non-recognition state and want to get married, do so in a state that allows you to get divorced even if you don’t live in that state.  Of course you should hope that your marriage lasts until “death do you part,” but that is a rarity these days.  Eventually we hope (and believe) that every state will recognize same-sex marriages, for all purposes, including the right to get a divorce.  But until then, don’t put yourself at risk of being wedlocked. And if you are raising children, don’t count on your marriage to protect you as a legal parent — insist on getting a second-parent adoption.

The last thing you want to be is a test case, even an “interesting” test case.  Protect yourself by being realistic about the lingering legal barriers to full marriage equality and plan accordingly!

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