How to Get Divorced in States Banning Same-Sex Unions
If you want to divorce a same-sex partner in a state that bans same-sex unions and divorces, it depends on where you were married. All divorces require the intervention of a court of law where a judge issues a final divorce decree (a court order declaring the legal end of a marriage or civil union).
Where you were married is relevant
The state where you were married determines how you can divorce or legally end your relationship.
If you live in a state that bans same-sex unions and you were married or received a civil union or domestic partnership in another state (that does legally recognize those unions), you more than likely can’t get divorced in your home state because your state law doesn’t recognize the legality of your relationship in the first place.
States that ban LGBT relationships argue that allowing gay and lesbian couples to divorce would inadvertently open the door to equal marriage rights.
Courts in states that have a mini DOMA (a state version of the federal Defense of Marriage Act prohibiting marriage of same-sex partners) almost certainly deny your divorce petition. Opponents of marriage equality in mini DOMA states feel divorce could be the first step down a slippery slope to full marriage rights for gay and lesbian partners.
Furthermore, you may not be able to get divorced in the state that granted your status because that state doesn’t have jurisdiction (power and/or authority to apply the law) to grant divorces to nonresidents. This catch-22 situation gives a whole new meaning to the term ‘wedlock’!
But even states like Rhode Island — a very progressive state that allows civil unions (a marriage-like status with all the same rights and benefits of marriage) — refuses to grant divorces to residents that were married in another state because state law only contemplates divorce between a husband and wife. And that’s true even though the governor has stated that Rhode Island will recognize same-sex marriages from other states.
Only one state, Georgia, has a mini DOMA that mentions the word divorce. The federal and other state DOMA’s only restrict access to LGBT marriage and are silent on the issue of divorce. Because those state DOMA’s don’t explicitly deny the right to same-sex divorce, why can’t their courts grant a divorce decree to LGBT spouses married in another state?
If you live in a DOMA state and are trapped in a marriage you no longer want, why not file for divorce and see what happens? If the court denies your petition, you can appeal to a higher court on the grounds that your state’s DOMA doesn’t apply to divorce.
Laws are always evolving, but they only do so when someone has the courage to challenge them. Thus, although ending a civil union, domestic partnership, or same-sex marriage may be technically difficult when your state doesn’t recognize your relationship, it may not be impossible.
Most states have statues defining divorce as the termination of the marital relationship between a husband and wife. This definition implicitly creates two requirements:
That the couple be married.
That the couple be of the opposite sex.
Because the LGBT couple is legally married in states where marriage equality (or its equivalent) is allowed, even if the home state doesn’t recognize the marriage, the couple is still married and the first requirement is met.
The divorce statute doesn’t specify that the marriage needs to be valid in the divorcing state, thus courts don’t need to read a validity requirement into their divorce statute. In the alternative, same-sex couples can ask the court to recognize their marriage for the limited purpose of granting them a divorce.
If the court refuses to grant a divorce under its own divorce statutes, why not ask if the state would agree to apply the laws of the state that granted the marriage in the first place?
In contract disputes between businesses and across state lines, courts are often asked to apply the law from another state if there are significant contacts in the state with the more desirable statute (in this case marriage and divorce equality).
Establish equitable relief for an LGBT divorce
If the court refuses to apply its own divorce statutes or the statutes of the state that issued the marriage certificate, a divorcing couple could always ask the court for equitable relief. All trial courts have the power to grant equitable relief (a judgment based what is fair and necessary for a particular case) when a legal remedy doesn’t exist.
To establish a need for equitable relief, one or both partners will need to show the following:
No other suitable legal remedy is available. As soon as the couple is denied their right to divorce in their home state and the state that granted their legal status, the first requirement is met.
Without a divorce, the couple will suffer real harm. Showing the harm a couple will suffer if they can’t get a divorce is fairly easy. As long as they’re married somewhere, they may perceive themselves to be unable to remarry and, if they do marry someone else, they’ll be caught in a legal limbo where they will be married or not as they travel across state lines.
No equitable defenses would prohibit the court from granting a divorce. To provide an equitable relief remedy, a judge doesn’t need to determine the validity of the marriage per se; he or she merely needs to acknowledge that the partners require a judicial remedy that is otherwise legally unavailable.
The court has the discretion to grant the divorce based on equitable jurisdiction. Although a couple may find equitable relief is better than nothing, it is not a divorce decree and therefore other states may not accept it as a valid termination of the marriage. If possible, ask the court to add language to the judgment declaring the marriage dissolved, and from this point on the partners are to be considered single individuals.
Using one or more of the preceding arguments for getting a divorce in nonequality states hopefully can result in the ability of a married same-sex couple to obtain a legal end to their marriage no matter where they were married and where they live now.