The Latest Cases on Access to Divorce and the Bisexual Remarriage

There’s a wonderful monthly compilation of LGBT legal developments: Lesbian Gay Law Notes http://www.nyls.edu/impact-center-for-public-interest-law/publications/lesbiangay_law_notes/ – edited by Professor Arthur Leonard.  This month’s issue tells of two recent cases that are illustrative of how the legal issues in our community are evolving.

On the hot topic of being “wedlocked” (being unable to get divorced because your home state doesn’t recognize your out-of-state marriage), the Florida 2nd District Court of Appeal recently reversed a trial court’s refusal to grant a lesbian couple a divorce of their Massachusetts marriage (Brandon-Thomas v. Brandon-Thomas, 2015 Fla. App. LEXIS 6051).  Even though Florida now allows same-sex marriages, this case arose prior to the invalidation of Florida’s DOMA law, and the Court rightly felt compelled to rule on the underlying legal issues.  To their credit, the judges understood that “access to divorce” is a basic right, and the Florida courts could not deny these Florida residence of this fundamental right.   The judges focused on the practical harm caused to the parties by not being allowed to process their divorce in their home state, pointing out that a divorce proceeding doesn’t really involve recognition of a marriage, as an ongoing relationship, but merely allows the couple to formally end their marriage.

If the United States Supreme Court rules favorably on either of the two questions before it (whether states have to allow same-sex couples to marry, and whether they have to honor out-of-state same-sex marriages), this problem will go away.  The good news is that an increasing number of states are realizing that denying access to divorce courts makes no rational or legal sense.  The better news will be when the Supreme Court renders this issue moot.

Once it is moot, we will be able to enjoy a new film in production — called Wedlocked.  It’s described as a comedic farce, telling the story of a lesbian couple unable to get divorced due to the hostile legal environments of many states.  Check out the website of the film in production: http://www.wedlockedthemovie.com

On a more discouraging note, a Kentucky appeals court has ruled that the former lesbian partner of a bio-mom could not challenge the adoption of their child by the bio-mom’s new husband.  The case of WRL v. AH, 2015 Ky. App. LEXIS 52 demonstrates that there are indeed “Bs” in the LGBT community – with some rather nasty results.  Because the non-bio-mom had never obtained legal parentage over their child, and because Kentucky doesn’t honor intentional parentage of same-sex couples, the non-bio-mom had no legal rights.  Thus, when the bio-mom sought to allow her new husband adopt “her” child, the non-bio-mom had no legal basis of challenging the adoption.    We all applaud everyone’s right to exercise the bisexual option, but abandoning one’s former partner and co-parent in this way seems particularly cruel.

Next up – the Supreme Court’s decision on the marriage cases, expected to be issued the last week of June.