Why Dissolving a Legal LGBT Relationship Is Unclear - dummies

Why Dissolving a Legal LGBT Relationship Is Unclear

By Carrie Stone, John G. Culhane

The federal Defense of Marriage Act (DOMA) defines marriage as a union of a man and a woman for federal purposes. But DOMA also expressly gives states the right to refuse to recognize a same-sex marriage performed in another state. Thanks to the Full Faith and Credit Clause of the United States Constitution, all 50 states must recognize the laws of the other 49 states, including marriage and divorce.

If you think DOMA appears to violate the Full Faith and Credit Clause, you’re not alone!

Because every state recognizes the legitimacy of heterosexual marriages performed in other states, an opposite-sex married couple can get divorced anywhere, and every state gives that divorce full faith and credit. Thus, the parties need only get past the following legal hurdles to be able to file for divorce. As long as one or both spouses meet these requirements, their divorce is likely to be granted:

  • One or both spouses must meet the state’s residency requirements, if applicable. A few states have no residency requirement for divorce, but most require one or both spouses to be a legal resident for six months or more.

  • The spouse filing for divorce must have a legal basis for doing so. Today, however, all states recognize no-fault divorce, enabling the parties to dissolve their union if they’re incompatible. In some states, though, spouses must be legally or actually separated for a specific period of time before the divorce will be granted.

Whether you’re married, in a civil union, or in domestic partnership — even if you only had a commitment ceremony that wasn’t legally recognized — in your own hearts, you and your partner almost certainly consider yourselves to be a family even though the law may disagree.

Because it involves the ripping apart of emotional, familial, financial, and legal ties, no matter if you’re gay or straight, breaking up is never easy. But ending a legally recognized same-sex relationship may be much more difficult.