For gay and lesbian couples living in states such as Texas where same-sex
marriage is not recognized, obtaining a divorce can be harder than they
thought. When couples marry in states such as California and New York
where same-sex marriage is legal, but live in places such as Texas and
Mississippi where it is not, they can be left with three choices when
they want a divorce:
- Move to a state where same-sex marriage is recognized, most of which impose
residency requirements to obtain a divorce,
- Try to get the marriage annulled, or
- Prepare for a protracted court battle.
Because most couples don’t want to disrupt their lives and uproot
their families, many same-sex couples decide to take the path of resistance:
court. Unfortunately, same-sex couples can find it hard to get divorced
in Texas if the judge presiding over their case doesn’t think that
they are married.
Wyoming allows same-sex divorce even though it has not legalized same-sex
marriage; however, states such as California, Minnesota, Delaware, Vermont,
and the District of Columbia allow couples who were married in their state
to return for divorces without meeting the residency requirements.
Defense of Marriage Act (DOMA)
Gay and lesbian couples who are seeking a divorce have faced some dead
ends despite the progress following last year’s Supreme Court ruling
against the federal Defense of Marriage Act (DOMA). While the 5-4 federal
United States v. Windsor forced the federal government to recognize same-sex marriage for the purpose
of federal benefits, it did not force other states to legalize same-sex
marriage, let alone recognize same-sex marriages performed in other states.
Conflict of Laws
Since the Supreme Court did not challenge Section 2 of DOMA, the ruling
does not require any state to legalize or recognize a lawful marriage
in another state. This means that in states where same-sex unions are
not possible, a divorce is often not possible, or at least very difficult
to come by.
In Texas, two couples who were married in Massachusetts nearly ten years
ago met opposite fates. One couple was granted a divorce in Austin, while
the other was denied a divorce in Dallas. The two cases have joined on appeal.
If you are in a same-sex marriage that was granted in another state and
you want to obtain a divorce, I urge you to contact me , Dennis M. Slate,
Attorney at Law. I would be glad to answer your questions and give you
the direction you need to move forward with your divorce.