Some same-sex couples 'wed-locked'

Same-sex couples can face legal headaches when seeking divorce in states not recognizing unions


Five years after the Iowa Supreme Court ruled in favor of marriage equality in Iowa, a string of lawsuits popping up across the country may determine how some states that don't recognize such unions will deal with the divorce of same-sex couples.

The District of Columbia and 17 states recognize the marriage of same-sex couples. But in remaining states, same-sex couples married elsewhere are denied recognition of their marriage.

This can pose a legal headache for same-sex couples and their lawyers, particularly when a same-sex couple residing in one of those states files for a divorce.

“They're stuck,” said Keith Elston, a family law and estate planning lawyer out of Kentucky, which does not recognize the marriage of same-sex couples. “They're really stuck, and there is no way for them to get a divorce and they're shocked when they find that out.”

On average, dissolution rates for same-sex couples are slightly lower than divorce rates of different-sex couples, according to a 2011 study conducted by the Williams Institute, a national think tank at UCLA School of Law that conducts independent research on sexual orientation and gender identity law and public policy.

According to the study, the percentage of same-sex couples who end their legal relationship is 1.1 percent on average, whereas 2 percent of married different-sex couples divorce annually.

Despite this, divorce is not a topic many couples are eager to discuss.

Situations vary

Elston, who serves many members of the lesbian, gay, bisexual, and transgender community, said same-sex divorce can be so difficult, if not impossible, in non-recognition states that he often steers those of his clients that plan ahead toward marrying in recognition states with a long-arm jurisdiction statute.

Such a statute would allow a couple married in a recognition state to get a divorce through that state even if they no longer live there if things don't work out down the road.

“It's so easy for them to go to one of these states and get married. There's no long waiting period. You can go there and do it and it's over with,” Elston said, referring to legal procedures for same-sex marriage in recognition states. “And people assume that that also means if they need to get a divorce they can do that almost as quickly.”

Only six states that recognize same-sex marriage have laws that would allow a couple married in that state to dissolve their marriage if they live in a non-recognition state that won't dissolve their marriage. Those states are California, Delaware, Hawaii, Illinois, Minnesota, Vermont and the District of Columbia.

Couples married in the remaining states essentially are out of luck if they move to a non-recognition state and want a divorce because those states frequently opt not to terminate the marriage.

If, for example, a same-sex couple was married in Iowa but now lives in a state that does not recognize same-sex marriage, such as Kentucky, at least one member of the couple might have to move to a state that recognizes same-sex marriage and gain residency before filing for divorce.

Depending on the state, establishing residency can take anywhere from six months to two years or more.

What's more is that some states require that you aren't just establishing residency for the purpose of getting a divorce, but that at least one member of the relationship plans to live there for a longer, undetermined amount of time, establishing domicile.

Faking residency is considered fraud, and attorneys often have to advise clients that that's not the appropriate way to address the issue.

“The irony of this whole thing is it would seem that the people who don't want same-sex couples getting married would encourage them to get a divorce so that they're not married,” Elston said. “They're forcing them to stay in marriages when they want to get out of them.”

Long-term implications

Joyce Kauffman, an lawyer whose Massachusetts practice focuses on family law with an emphasis on the LGBT community, said at least one non-recognition state has granted a same-sex couple a divorce.

“But the vast majority of non-recognition states, to date, won't allow a same-sex divorce on the theory they don't recognize the marriage so they can't do the divorce,” Kauffman said.

In other words, many same-sex couples that have lived full-time in non-recognition states are “wed-locked,” and legal experts say it can lead to a slew of other problems down the road.

If, for example, a same-sex couple is not able to get a divorce, but one member of that marriage turns around and marries someone else, they commit bigamy.

“Although not many (people) are prosecuted for that, it causes a huge amount of confusion in terms of who is a legal spouse in cases of, death, for example,” Kauffman said, adding that issue is bound to come up as more non-recognition states become same-sex marriage recognition states.

She added that the second marriage would not be valid and could have impacts in many areas, including child custody matters, divorce, inheritance, pension plans and tax filings.

That's without mentioning the financial and emotional consequences a same-sex couple may have to endure when denied a divorce.

Brian Silva, executive director of Marriage Equality USA based in New York, said one of the rights and benefits of marriage is also having the benefit of accessing the divorce system, though it's not something people necessarily think or talk about when getting married.

“As painful as it is for two people to want to be married and not have access to it, think about folks that are together and now no longer want to be together,” Silva said. “You kind of amplify the emotional harm that happens to our families when you don't give them access to the system to try to make what is probably one of the most painful times in anybody's life as unpainful as you possibly can.”

He added that not all families have the financial means to travel from where they're living to be able to establish residency elsewhere on top of the other costs a couple incurs during a divorce.

Across the country

To date, at least one state that does not recognize same-sex marriage — Wyoming — has ruled to allow a same-sex couple married elsewhere to obtain a divorce.

According to the 2011 ruling, the Wyoming Supreme Court reversed a district court decision to dismiss a divorce petition filed by a same-sex couple who married in Canada, allowing the women to obtain a divorce. The district court initially determined it didn't have jurisdiction to dissolve the same sex marriage.

A similar divorce petition, involving a same-sex couple married in Iowa in January 2013, has been filed in Allen County, Indiana. Though that case has not yet moved forward, it was one of a group lawsuits filed last month that challenge Indiana's ban on same-sex marriage.

Similar divorce cases have cropped up in other states such as Texas, Alabama and Kentucky.

These cases come at a time when federal judges have struck down same-sex marriage bans in states including Utah and Texas, though the rulings are on hold pending appeals. The Utah case went before the federal appeals court on Thursday.

Though a June 2013 U.S. Supreme Court ruling requires the federal government to recognize same-sex marriages — making same-sex couples nationwide eligible for federal benefits — the ruling stops short of forcing states to recognize same-sex marriages.

Legal experts specializing in LGBT rights say some of these issues may soon be moot if the U.S. Supreme Court makes a ruling on the constitutional right to marry in 2015.

Until then, for many, it's a waiting game.

Reuters contributed to this report.

Give us feedback

We value your trust and work hard to provide fair, accurate coverage. If you have found an error or omission in our reporting, tell us here.

Or if you have a story idea we should look into? Tell us here.