With an increasing number of states allowing same sex marriage and the Supreme Court's recent address of the Defense of Marriage Act and inevitable consequence is that my office and many other law firms are seeing more and more same sex divorce questions and problems.
In order for any state Court to be able to divorce you from your spouse, that Court must first have jurisdiction over the marriage and the people in the case. This is called subject matter and personal jurisdiction. Jurisdiction is too complicated and broad a topic to delve into in a short blog - but we will suffice it to say that each state has different residency requirement for you to meet the standard necessary for that Court to have jurisdiction. So, while you may be able to get married in any state you like, you can only get divorced in a State that has jurisdiction.
So here is the problem, Ann and Mary go to IL to get married. They then return to Florida where they lived to carry on their lives. Things don't work out and they decide to end their relationship. Florida would normally be the place to have jurisdiction over this marriage - but wait - Florida doesn't recognize same sex marriage and therefore you can't get them divorced in Florida. However, no other state has jurisdiction to divorce them either. In order to get them divorced in IL a person must reside there for 3 months, some other states require 6 months (like FL). So Ann and Mary are married and cannot get divorced because no State which will divorce a same sex couple has jurisdiction; unless, of course, they want to relocate to IL for 3 months to gain jurisdiction in IL and then file there.
You might ask yourself - if Florida doesn't recognize same sex marriage and they live in FL then why does it matter if they get divorced? Well, the answer is that Ann and Mary do not live in a FL vacuum. Any of the liabilities, responsibilities sand legal presumptions that go along with marriage will continue to be upheld in any state which recognizes the marriage and this could cause real problems. Same for example that 2 years later Ann decides to buy a house in VT, well as far as VT is concerned Ann is a married woman and as such it is possible that Mary is a joint owner in that house even if she has no current relationship with Ann. Or, say Ann moves to VT and has a child, the child is technically a child of the marriage. In FL, a child of the marriage means legal mom and dad. (I don't know VT law on the subject of titling of property within a marriage or child custody so this is a presumption based on how it would work under FL law). These are major issues.
So, if you are a same sex couple and considering getting married - what can you do to protect yourself?
1. Be realistic, not idealistic. Not all marriages work and it does not matter who you chose as a partner. You have to prepare for a divorce ahead of time much more than a straight couple.
2. Talk to a lawyer. Make sure the lawyer is knowledgeable on same sex marriage issues or is willing to do the research to find out.
3. Have a pre-nup. Even in FL, we have been able to quietly push through uncontested divorces for same sex couples. If it isn't going to be litigated and instead we just need a ruling declaring the marriage dissolved, we often can be successful.
4. Get married in CA, DE, DC or VT. These States, I am told, provide for jurisdiction over a divorce if you were married that State.
If you need guidance through the process, contact an attorney. Solaris Law Group offers free consultations.