Same-Sex Right to Divorce?

In recent years, there has been much debate over same-sex marriage. More specifically, should these unions be recognized by the government and eligible for all the same benefits as “traditional” marriages. The nation has truly been split over this issue. 16 states, including California, Maine, Maryland, Rhode Island, and Illinois, have recognized gay marriages. 33 states, including Pennsylvania, Mississippi, Ohio, Nevada, and Kentucky, have banned gay marriages.

This divide has caused some very difficult and interesting family law issues. For example, if you enter into a union with someone of the same sex in California, but relocate to Pennsylvania, how do you get a divorce in a state that doesn’t recognize your marriage in the first place?

The Associated Press reported on a real life example of the question above. Lauren Beth Czekala-Chatham married Dana Ann Melacon in San Francisco, California, in 2008, and the two moved to Mississippi a year later. The marriage didn’t last. Now Czekala-Chatham is pursing a divorce in Mississippi—a state that doesn’t recognize the initial union.

According to The Associated Press, couples in states that don’t recognize same-sex marriages would typically have to move back to the state where they were initially wed and establish residency in order to get a divorce. Obviously, this option is unappealing and undoable for many. After all, what about work, children, and family? Establishing residency is not an overnight process.

In the case of Czekala-Chatham and Melacon, Czekala-Chatham is willing to go back to California in order to get a divorce, but her lawyer has advised against it based on another roadblock: Mississippi wouldn’t recognize the divorce and the marital property would remain tied up.

Mississippi isn’t the only state that has banned same-sex marriage and is now encountering same-sex couples seeking a divorce. On Nov. 5, 2013, the Texas Supreme Court heard the case of couples from Austin and Dallas who married in Massachusetts and are now seeking a divorce. The Associated Press reports, “The Austin couple was granted a divorce, but Attorney General Greg Abbott intervened in the Dallas case and won an appeals court decision blocking a divorce.”

Whether a couple is comprised of individuals of the opposite sex or the same sex, the inability to get a divorce can affect a range of important matters, including the division of property such as real estate, child custody, health insurance, financial matters, and the ability to remarry. Obviously, marriage is an institution that should not be entered into lightly or on a whim. Couples of any sex are encouraged to think about it very seriously before taking the “leap.”

Contact an experienced family law attorney if you have questions about divorce in your state.

Same-Sex Right to Divorce? was last modified: September 23rd, 2015 by William Arbuckle